' 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


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LIBRARY 


Faculty  library 


REPORTS 


CASES     DECIDED 


HIGH  COURT  OF  CHANCERY 


MARYLAND. 


BY    THEODORICK   BLAND, 

CHANCELLOR. 


VOL.  I. 


BALTIMORE: 
PUBLISHED   BY  JOSEPH  NEAL. 

1836 


-b-lS 


Entered,  according  to  the  Act  of  Congress,  in  the  year  1836,  by  Joseph  Neal, 
in  the  Clerk's  Office  of  the  District  Court  of  Maryland. 


STEREOTyPED   BY  LuCAS  &   NbAL. 


P  R  E  F  A  C  E. 


On  receiving  the  appointment  of  Chancellor,  I  determined 
to  make  every  effort  to  acquire  a  competent  knowledge  of 
the  peculiar  princii^les  and  practice  of  the  Court  of  Chancer}^ 
of  Marjiand,  to  which  my  attention  had  been  so  rarely 
drawn,  and  for  which  I  had  had,  for  many  years  in  the 
judicial  stations  I  previously  held,  so  little  use.  Upon 
inquiry  I  soon  found,  that  any  thing  like  an  accurate  know- 
"^  ledge  of  those  peculiarities  was  only  to  be  gathered  from 
_.  the  records  themselves ;  to  which  I  therefore  resorted,  and 
after  a  careful  perusal  noted  the  course  of  proceeding,  and 
occasionally  made  short  digests  of  such  cases  as  appeared 
most  likely  to  be  useful  thereafter.  In  this  way  I  collected 
a  considerable  mass  of  information,  which  has  gi'eatly 
facilitated  my  official  labours. 

It  is  of  no  less  importance  to  the  people  than  to  the 
profession,  that  the  peculiar  principles  and  practice  of  the 
court,  as  well  as  the  general  rules  of  law,  should  be  clearly 
made  known  to  all ;  wliich  it  is  obvious  can  in  no  way  be 
so  well  done  as  by  the  usual  mode  of  publishing  reports  of 
cases  as  they  have  actually  occurred  and  been  disposed  of. 
For  a  time  I  had  reason  to  hope,  that  some  member  of  the 
bar  would  report  the  cases  as  they  were  decided  subsequent 
to  my  appointment;  but  when  that  hope  failed  I  determined 
to  undertake  the  work  myself.  The  task,  I  was  aware, 
would  be  attended  with  many  difficulties  and  much  labour ; 
and  the  more  so  to  me,  because  of  the  manifold  interruptions 


iv  PREFACE. 

occasioned  by  the  heavy  current  of  business  continually 
pressing  through  the  court. 

On  reflecting  upon  the  nature  of  the  undertaking  I  deemed 
it  proper  to  begin  with  the  earliest  of  my  own  decisions, 
taking  them  up  in  chronological  order  according  to  the  date 
of  the  last  material  adjudication  in  each  case,  and  to  make 
such  a  selection  from  them  as  would  give  to  the  profession 
the  greatest  amount  and  variety  of  information  within  the 
smallest  compass.  I  have  rarely  or  never  preserved  my 
notes  of  the  arguments  of  counsel  after  my  decision  has  been 
pronounced ;  and  therefore  it  has  been  entirely  out  of  my 
power  to  give  even  the  usual  skeleton  of  the  arguments  of 
solicitors ;  many  of  which  have  been  distinguished  by  great 
ability ;  and  from  most  of  which  I  have  derived  much 
instruction.  To  make  up  in  some  degree  for  this  defect,  I 
have  taken  pains  so  to  digest  the  pleadings,  and  to  state  the 
circumstances  as  to  present  a  full  view  of  all  the  points 
which  had  been,  or  could  have  been  made  in  the  case;  and 
to  render  the  decisions  as  useful  as  possible  I  have  revised 
the  reasons  for  them  all,  and  have  so  recast  and  enlarged 
some  as  to  comprehend  all  the  points  whicli  ap})arcntly 
might  have  been  made.  In  each  case  I  have  given  refer- 
ences to  all  the  authorities  deemed  pertinent  and  within  my 
reach ;  and  have  also  inserted,  from  the  records,  by  way 
of  notes,  short  reports  of  a  number  of  cases  decided  by  my 
predecessors. 

Although  Tlie  C}ianccllor\s  Case  cannot  in  any  way  be 
considered  as  a  controversy  whicli  had  been  adjudicated 
upon  by  the  Court  of  Chancery,  it  is  nevertheless  a  determina- 
tion of  the  General  Assembly  in  relation  to  the  sole  judge  of 
tliat  tribunal  which  involved  the  examination  and  discussion 
of  subjects  of  the  most  interesting  nature*,  and  is  a  decision 


PREFACE.  y 

of  the  legislative  department  upon  a  question  of  constitu- 
tional law  of  the  most  vital  importance  to  the  Chancellor  in 
particular,  and  to  the  judicial  department  in  general.  It 
therefore  appeared  to  have  a  most  undeniable  claim  to  go 
before  the  public  in  a  permanent  form  as  an  associate  with 
the  decisions  of  that  Chancellor  whose  constitutional 
securities  had  been  so  severely  questioned. 

The  discharge  of  my  official  duties  has  heretofore  left 
me  so  little  time  to  turn  my  attention  to  any  thing  else, 
that  the  preparation  of  this  first  volume  of  Reports  has 
been  much  longer  delayed  than  I  had  calculated  upon. 
It  is  now  however  submitted  to  the  candour  of  a  generous 
and  enlightened  profession. 

TIIEODORICK  BLAND. 

An>'apolts,  December,  1835. 


A  LIST 


THE  CHANCELLORS  OF  THE  STATE  OF  MARYLAND. 


RICHARD  SPRIGG,  appointed  by  the  General  Assembly,  3d  of 
April,  1777;  resigned  March  1778. 

JOHN  ROGERS,  appointed  by  the  Governor  and  Council,  20th 
of  March  1778;  died  1789. 

ROBERT  HANSON  HARRISON,  1st  October  1789  ;  declined 
accepting. 

ALEXANDER  CONTEE  HANSON,  3d  October  1789;    died 
1806. 

GABRIEL  DUVALL,  20th  January  1806  ;  declined  accepting. 

ROBERT  SMITH,  23d  January  1806  ;  declined  accepting. 

WILLIAM  KILTY,  26th  January  1806;  died  1821. 

JOHN  JOHNSON,  15th  October  1821 ;  died  1824. 

THEODORICK  BLAND,  16th  August  1824. 


A  TABLE  OF  THE  NAMES  OF  CASES. 


N.  B.  Versus  always  follows  the  name  of  the  Plaintiff;  and  those  Cases  the  names 
of  which  are  in  italics  are  in  the  Notes. 


Allen  V.  Burke,  ....  544 
Armiger,  Iglehart  v.  .  .  .  519 
Attorney  General  \.  J^orwood,  581 
Jlisquith  V.  Godman     .     .     .     317 


Barnahy  v.  Hollingsworth, 
Bai-nes,  Chapman  v. 
Baker,  Millar  v. 
Bairy,  Stewart  v.    . 
Beaity,  Chapline  v. 
Beat,  Murdoch  v.    . 
Bennet,  O  Brian  v. 
Billingslea  v.  Gilbert, 
Bicknall,  Worthington  v. 
Birchfield  v.  Brown,    .     . 

V.  Vanderheyden 

Black,  Ex  parte  Margaret 
Bryson  v.  Petty, 
Bowie  V.  Mockbee, 

,  HiU  V.    .     . 

Bozman,  Cox  v. 
Brown,  Birchfield  v. 

,  Mackubin  v. 

Bronaugh,  Griffith  v. 
Browning,  Cunningham  v 
Boushell,  Rothwell  v. 
Burch  V.  Scott, 
Burke,  Allen  v. 
Burd  V.  Greenleaf,  . 

Campbell,  Dorsey  v. 
Carroll  v.  Parran,. 

,  Rowlings  V. 

Chancellor's  Case, 
Chapline  v.  Beatiy 


430 
552 
147 
191 
197 
109 

86 
566 
186 
446 
465 
142 
182 
551 
593 

25 
446 
410 
547 
299 
373 
112 
544 
556 

356 
126 
75 
595 
197 


Chapline  v.  Chapline, 
Chapman  v.  Barnes, 
Chase's  Case,  Hannah  K. 
Chase  v.  Manhardt 

,  Coale  V.       .     . 

,  McMechen  v.   .     . 


Clapham  v.  ClapJutm    . 

V.  Thompson 

Clarke,  Carrie  v.  .  .  . 
Clause,  Jansey  v.  ,  .  . 
Coale  V.  Chase  .... 

V.  Garretson       .     . 

Codd  V.  Codd,    .... 
Colegate  D.  Owings'  Case 
Coleston,  Hopper  v.      .     . 
Colegate,  Taylor  v.       .     . 
Com' rs  of  Baltimore,  Pascault 
Conner,  Law  v. 
Corrie  v.  Clarke 
Corse  V.  Polk     . 
Cox  V.  Bozman 
Cowell  V.  Seyhrey 
Cunningrham  v.  Browning 


DdUam,  Murphy  v. 
Davis,  Griffith  v.     . 
Deaver  v.  Reynolds 
Dew,  Gittings  v. 
Diffcnderffer  v.  Hillen 
Dorsey  v.  Campbell 

V.  Dulany   . 

;  Etchison  v. 

V.  Hammond 


Dorsey,  Pue  v.  . 
Dorsctt,  VVatldns  v. 


TABLE   OF   THE   CASES. 


Dulany,  Dorsey  v. 

,  Rymer  v. 

Duvall  V.  Waters 


Edmondson  v.  Frazier 
Estep  V.  Watkins    . 
Etchison  V.  Dorsey 

Flannagan  v.  Krips 
Frazier,  Edmondson  v 
Fenwick  v.  Laughlin 
Fisher  v.  Keene 
Fornshill  v.  Murray 
Forwood,  Powlson  v. 
Fowler  v.  Goodwin 

Garretson,  Coale  v. 
Gleaves,  Perkins  v. 
Gibson's  Case     .     . 
Gibson  v.  Tilton 
Gilbert,  Biilingslea  v. 
Gittings  V.  Dew 
Griffith  V.  Bronaugh 

V.  Davis 

Godman,  Aisquith  v. 

Hammond  v. 

Goodwin,  Fowler  v. 
Gordon,  Baylor  v. 
Gorsuch,  Long  v.   . 
Greenleaf,  Burd  v.  " 

Hall's  Case,  Margaret, 
Hall  V.  Hall       .     .     . 

,  Williams  v.    . 

Hammond  v.  Godman  . 

Dorsey  v.     . 

Hannah  K.  Chase's  Case 
Hanson,  Latimer  v. 
Harrison,  Moreton  v.    . 
Hastings  v.  Plater 
Henderson,  Lingan  v. 
Hepburn  v.  Mollison    . 
Hewitt  V.  Hewitt    .     . 
Higginson,  Rickotl  v. 
Hill  V.  Bowie     .     .     . 
Hillen,  Diffendcrffer  v. 


465 
2^38 
569 

92 
486 
535 

58-2 
92 
474 
563 
479 
610 
327 

581 
553 
138 
352 
566 
583 
547 
553 
317 
318 
327 
132 
316 
356 

203 
130 
193 
318 
463 
206 
51 
491 
613 
236 
127 
101 
534 
593 
189 


Hoffman  v.  Johnson     . 
Hodges  V.  Mullikin 
Hollingsworth,  Barnahy  v 
Hopper  V.  Coleston 
Hoye  V.  Penn     .     .     • 
Howard's  Case  .     . 
Hughes'  Case     .     .     . 


Jansey  v.  Clause 
Jenifer  v.  Stone 
Iglehart  v.  Armiger 
Johnson,  Hoffman  v. 
Ridgely  v. 


Jones  V.  Jones 

V.  Magill 

,  Ringgold  V. 


Kankey,  M'Komb  v. 
Keene,  Fisher  v. 
Krips,  Flannagan  v. 

Labes  V.  Monker 
Latimer  v.  Hanson 
Laughlin,  Fenwick  v. 
Llewellin,  Slye  v.    . 
Lingan  v.  Henderson 
Long  V.  Gorsuch     . 
Low  V.  Conner  . 


Macubin  v.  Brow^n 
McKim  V.  Thompson 
McMechin  v.  Chase 
Story 


McKomb  V.  Kankey 
Magill,  Jones  v.       .     . 
Manhardt,  Chase  v. 
Margaret  Hall's  Case   . 
Mai-garet  Black,  Ex  parte 
Mayer  v.  Tyson 
Millar  V.  Baker 
Mockbee,  Bowie  v.  . 
Mollinson,  Hepburn  \ 
Monker,  Labes  v.     . 
Moreton  v.  Harrison 
Mullikin  v.  Mullikin 
,  Hodges  V. 


TABLE    OF   THE    CASES. 


XI 


Murdoch  V.  Bed     ....  109 

Muq:>hy  v.  Dallam       .     .     .  529 

INIurray,  Fornshill  v.    .     ■     .  479 

Mxon,  Paul  V 200 

J^orwood,  Attorney  General  v.  581 

Ogden  V.  Ogden     ....  284 

Oliver,  Tonsry 198 

0' Brian  v.  Bennet  ...  86 
Owings'  Case,  Colegate  D.  .  370 
,  Rebecca    .     .  290 

Parran,  CaiToll  v 125 

Pascault  V.  The  Commissioners 

of  Baltimore        ....  584 

Paul  V.  jYixon 200 

Penn,  Hoye  v 28 

Perkins  v.  Gleaves       .     .     .  553 

Petty,  Bryson  v 182 

PhiUips  V.  Shipley       .     .     .  51G 

Plater,  Hastings  v.       ...  613 

Polk,  Corse  v.' 233 

Powlson  V.  Forwood    .     .     .  610 

Pue  V.  Dorsey 1-39 


Rowlings  V.  Carroll 

V.  Stewart 

Rebecca  Owings'  Case 
Reynolds,  Deaver  v. 
Rickott  V.  Higginson 
Ridgely  v.  Johnson 

V.  Warjield 

Ringgold's  Case 
Ringgold  V.  Jones 
Roloson,  Wells  v.     . 
Rothwell  V.  Boushell 
Rymer  v.  Dulany   . 


7o 

22 
290 

50 

534 

316 

494 

5 

88 
456 
373 
238 


Sarah  Wright" s  Case 
Scott,  Burch  v. 
Seybrey,  Cowell  v- 
Shipley,  Phillips  v. 
Slye  V.  Llewellin     . 
Snowden  v.  Snowden 
Spurrier  v.  Spurrier 
Stewart  v.  Bairy     ■ 
,  Rawlings  v. 


Stone,  Jenifer  v. 
Story,  McMechin  v. 
Street,  Ex  parte 
Strike's  Case      .     • 


Taylor  v.  Colegate 

V.  Gordon 

V.  Wood 


Tilton,  Gibson  v.     . 
Thompson  v.  McKim 
Clapham 


Tong  V.  Oliver 
Tyson,  Mayer  v. 


Vanderheyden,  Birchfield  v. 


Waters,  Duvall  v.    • 
Watkins  v.  Dorsett 

Estep  V.    . 

V.  Watkins 


Warfield,  Ridgely  v. 
Wells  V.  Roloson 
Williamson  v.  Wilson 
Williams  v.  Hall     • 
Willing  V.  Wright 
Wright's  Case,  Sarah 
Wright  V.  Wright  . 
Wood,  Taylor  v. 
Worthington  v.  Bicknell 


CASES    DECIDED 


IN   THE 


HIGH    COURT    OF    CHANCERY 

OF   MARYLAND. 


RINGGOLD'S   CASE. 


The  right  of  appeal  at  common  law  and  in  equity; — in  what  cases  it  is  allowed  ;  and 
how  fer  it  may  be  controlled  by  the  inferior  court  from  whose  decision  the  appeal 
is  taken ; — in  what  cases,  and  to  what  amount  an  appeal  bond  may  be  required ; 
and  how  such  bonds  are  examined,  rejected,  or  approved. 

This  suit  was  instituted  here  in  January,  1811,  by  the  plaintiffs, 
who  were  the  cestui  que  trusts ^  under  a  deed  of  trust,  against  Samuel 
and  Tench  Ringgold,  to  obtain  an  account  of  the  trust  property,  and 
the  payment  and  delivery  of  the  balance  in  their  hands.  And  by 
a  final  decree  of  this  court  of  the  30th  of  September,  1824,  the 
defendants  were  ordered  to  pay  to  the  plaintiffs,  on  or  before  the  first 
of  December  then  next,  the  sum  oi ffty-three  thousand  eight  hundred 
and  fifty- seven  dollars  and  seventy-nine  cents,  with  interest  on  thirty- 
nine  thousand  four  hundred  and  eighty  dollars  and  forty-six  cents,  part 
thereof,  from  the  first  of  July,  1823,  until  paid,  and  costs,  (a) 

From  this  decree  the  defendants  appealed  ;  and  on  the  20th  of 
October,  1824,  the  plaintiffs,  by  their  petition,  stated,  that  the 
defendant  Samuel  had  conveyed  all,  or  nearly  all,  his  property  to 
trustees  for  the  payment  of  his  debts ;  and  they  were  apprehen- 
sive, that  those  trustees  would  be  offered  as  sureties  in  the  appeal 
bond.  Upon  which  they  prayed,  that  they  might,  on  the  filing  of 
an  appeal  bond,  be  allowed  to  shew  cause  against  the  sufficiency 
of  any  sureties  that  might  be  offered,  as  the  amount  decreed  to 
them  was  very  considerable ;  and  they  were  willing,  that  the 
issuing  of  execution  on  the  decree  should  be  suspended  until  the 
matter  could  be  heard. 


(a)  Ringgold  v.  Ringgold,  1  H.  &  G.  32. 


6  RINGGOLD'S  CASE. 

On  the  3d  of  November,  1824,  an  appeal  bond,  in  the  usual  form, 
was  filed,  executed  by  the  defendant,  Samuel  Ringgold,  and  by 
Samuel  Ringgold,  Junr.,  and  Isaac  Swearingen,  as  his  sureties. 
On  which  bond  tliere  was  a  certificate,  signed  by  William  Price,  a 
solicitor  of  this  court,  in  these  words :  "  I  believe  the  above  bond  to 
be  good  for  the  penalty  therein  mentioned,  28th  October,  1824." 

On  the  8th  of  November,  1824,  the  plaintiffs,  by  their  petition, 
objected,  that  the  sureties  in  the  appeal  bond  were  wholly  insuf- 
ficient; that  Samuel  Ringgold,  Junr.,  had  no  independent  means  to 
justify  his  suretiship ;  that  Swearingen  had  but  inconsiderable  pro- 
perty, if  any,  in  comparison  with  the  vast  amount  for  which  he  was 
offered  as  surety — his  employment,  for  a  long  period,  having  been 
only  that  of  an  overseer,  or  manager,  of  the  estate  of  the  defendant 
Samuel ;  that  the  defendant  Samuel  had,  some  time  before,  conveyed 
to  those  sureties  all  his  estate  for  the  payment  of  his  debts  then  due  ; 
and,  that  it  was  doubtful  whether  the  property,  so  conveyed  to 
them,  could  be  deemed  liable  to  the  debt  decreed  to  be  paid  to  the 
plaintiffs.  To  this  petition  was  annexed  an  affidavit  of  Mary  Ring- 
gold, one  of  the  plaintiffs,  in  which  she  stated,  that  those  sureties 
were  not  sufficient;  and,  according  to  her  information,  they  were  far 
from  having  means  to  meet,  or  support  their  responsibility  as  such 
sureties.  Upon  which  the  petitioners  prayed,  that  they  might  be 
allowed  to  shew  cause,  and  to  take  testimony  in  relation  to  the 
sufficiency  of  the  sureties  offered. 

9f/i  November,  1824. — Bland,  Chancellor,  Ordered,  that  the 
matter  of  this  Petition  be  heard  during  the  second  week  of  the 
ensuing  December  term :  And,  that  proofs  be  taken,  as  to  the 
sufficiency  of  the  sureties  offered,  before  any  Justice  of  the  Peace, 
by  either  party,  on  giving  reasonable  notice  of  the  time  and  place 
of  taking  the  same  to  the  opposite  party,  or  their  solicitor.  And 
it  is  further  Ordered,  that  the  issuing  of  execution  on  the  final 
decree  in  this  case  be  stayed  until  the  hearing  of  the  matter  of  this 
petition  or  further  order. 


Under  this  order  proofs  were  taken  on  the  part  of  the  defendant 
Samuel  Ringgold,  which,  togetiier  with  the  deed  of  trust  firom  him 
to  Swearingen  and  Samuel  Ringgold,  Junr.,  and  the  inventory  of 
the  property  conveyed  by  it,  were  returned  and  filed. 

ZOth  December,  1824. — Bland,  Chancellor.  The  amount  decreed 
to  be  paid  having  given  to  this  matter  a  more  than  usual  degree  of 
importance  ;  and  the  prayer  of  the  petition  calling  for  an  expression 


RINGGOLD'S  CASE.  7 

of  the  Court's  opinion  as  to  the  nature  and  extent  of  the  citizen's 
right  of  appeal,  I  therefore  deemed  it  proper  to  appoint  a  day  for 
hearing,  so  as  to  allow  an  interval  within  which  the  parties  might 
be  permitted  to  take  testimony  in  support  of  their  allegations,  and 
so  as  to  give  time  to  look  into  the  practice  of  the  Court  in  relation 
to  appeals,  for  the  purpose  of  having  the  subject  carefully  revievced 
and  maturely  considered. 

It  has  always  been  regarded  here,  as  well  as  in  England,  as  a 
constitutional  right  of  every  citizen  to  have  his  case  reviewed,  in 
one  form  or  other,  by  a  court  of  error.  (6)  Under  the  Provincial 
government,  this  right  of  the  citizen  to  have  a  revision  of  a  judg- 
ment, in  any  civil  case,  affecting  his  interests,  was  extended,  in 
many  instances,  beyond  the  court  of  the  last  resort,  in  the  Pro- 
vince, to  the  king  in  council,  (c)  In  reference  to  which  extended 
right  of  appeal,  the  Constitution  of  the  Republic  has  emphatically 
declared,  "  that  there  be  a  Court  of  Appeals,  composed  of  persons 
of  integrity  and  sound  judgment  in  the  law,  whose  judgment 
shall  be  final  and  conclusive  in  all  cases. "(c?)  So  as  thereby, 
in  the  most  distinct  and  positive  terms,  to  exclude  and  prevent  the 
further  prosecution  of  appellate  proceedings,  in  any  case,  from  that 
ultimate  tiibunal  of  the  Republic,  as  had  been  before  allowed  under 
the  government  of  the  Province,  (e) 

This  right  of  appeal  seems  to  have  been  conceded  to  the  citizen 
by  the  common  law,  in  all  civil  cases,  without  check,  or  control  of 
any  kind  whatever.  (/)  A  writ  of  error  was  granted,  on  demand, 
as  a  matter  of  right  ;(o)  and,  if  the  appellant  was  at  all  appre- 
hensive, that  proceedings,  in  execution  of  the  judgment  which  had 
been  so  taken,  up  by  the  writ  of  error,  would  not  be  stayed,  he 
might,  as  of  course,  sue  out  a  writ  of  supersedeas  for  the  purpose 
of  having  all  such  proceedings  suspended  until  a  decision  was  had 
upon  the  writ  of  error,  {h)  The  form  of  the  writ  of  supersedeas, 
which  followed,  as  the  adjunct  and  auxiliary  of  the  wlit  of  error 
was  thus,  "that  if  the  judgment  be  not  executed  before  the  super- 
sedeas, the  Sheriff  is  to  stay  from  executing  any  process  of  execution 
until  the  writ  of  error  is  determined."  {i)  Hence  it  was,  and  not 
from  the  quaint  notion,  that  an  execution  being  an  entire  thino- 
which,  when  once  begun,  must   be  completed,  that,  if  the  Jieri 


(b)  Christie  i'.  Richardson,  .3  T.  R.  78.— (c)  1773,  ch.  7,  s.  5.—(d)  Const,  art.  56. 
(e)  Hammond  t-.  Ridgely,  5  H.  &  J.  268.— (/)  Tidd,  Pra.  1074.— (cr)  D.  Regina  v.  Pat>-, 
2  Salk.  504.— (/()  Jac.  L.Dic.  vide  Supersedeas.— {i)  Meriton  v.  Stevens,  Willis,  2S1. 


8  RINGGOLD'S  CASE. 

facias  had  been  levied,  the  Sheriff  was  bound  to  sell  the  goods  and 
bring  the  money  into  court  to  abide  the  event  of  the  writ  of  error. 
And  this  becomes  the  more  evident  on  adverting  to  the  fact,  that, 
in  many  other  cases,  where  no  such  special  directions  were  given 
to  the  Sheriff,  the  proceedings,  in  execution  of  the  judgment,  were 
intercepted  and  cut  short  at  the  very  point  at  which  the  writ  of  error 
or  supersedeas  might  happen  to  find  thtm.  [j)  But  it  has  been  long 
established,  that  the  writ  of  error,  with  an  approved  bond  to  prose- 
cute it  with  effect,  of  itself,  operates  as  a  stay  of  further  proceedings 
to  the  same  extent,  that  might  have  been  specially  directed  by  a 
writ  of  supersedeas ;  which  writ,  owing  to  that,  although  formerly 
always  sued  out  in  this  State,  [k)  has  long  since  become  obsolete, 
and  is  now  never  resorted  to  as  a  mere  auxiliaiy  to  a  writ  of  error 
in  any  case  whatever.  {I) 

But,  although  the  right  to  appeal,  in  civil  cases  at  common  law, 
was  thus,  for  a  long  time,  admitted  to  be  absolute  and  beyond 
control ;  yet  it  was  limited  in  its  range  to  such  facts  as  would 
have  manifestly  required  a  different  course  of  proceeding  and  judg- 
ment, had  they  been  made  known  to  the  Court;  and  to  such  errors 
in  law  as  appeared  upon  the  face  of  the  record  itself.  And  these 
errors  in  law,  according  to  the  common  law  mode  of  proceeding, 
could  rarely  be  any  thing  more  than  such  points  of  law  as  arose 
out  of  the  allegations  of  the  parties,  in  which  no  part  of  the  evidence, 
which  might  have  been  offered  in  support  of  them,  could  appear ; 
although,  as  to  such  evidence,  and  in  their  direction  to  the  jury,  the 
Court  might  have  fallen  into  many  and  great  errors.  Hence  it  was, 
that  the  parties  were,  by  statute,  allowed  to  have  any  such  matter 
inserted  in  the  record,  in  the  form  of  a  bill  of  exceptions,  so  as  to 
have  the  decision,  in  relation  to  it,  revised  and  corrected,  if  erroneous, 
in  a  court  of  error,  [m)  But,  whether  the  errors  complained  of  were 
in  fact,  or  in  law ;  or  whether  they  arose  in  an  interlocutory  pro- 
ceeding, or  in  the  last  act  of  the  Court,  the  party  was  not  allowed 
to  intercept  the  case  in  its  progress,  or  to  exercise  his  right  of 
appeal,  until  the  court  of  original  jurisdiction  had  pronounced  its 
final  judgment;  as  in  partition  or  account  there  could  be  no  writ 


ij)  Jac.  L.  Die.  vuk  Supersedeas.— (k)  Land.  H.  A.  1 16.  Chan.  Pro.  lib.  C.  D.  368. 
A  fee  was  formerly  allowed  to  the  Chancellor,  which  was  afterwards  directed  to  be 
paid  into  the  treasuiy,  for  putting  tlie  great  seal  to  a  writ  of  error,  and  also  a  distinct 
fee  for  putting  the  great  seal  "to  a  supersedeas  thereupon"— 1763,  ch.  18,  s.  88; 
Oct.  1777,  ch.  13;  November,  1779,  ch.  25,  s.  22.— (/)  2  Bac  Abr  477.— (m)  Tidd, 
Pra.  787 ;  1  Hal.  Const.  H.  Eng.  9,  note. 


RINGGOLD'S  CASE.  9 

of  error  allowed,  but  upon  the  final  judgment ;(«)  nor  could  any 
writ  of  error  be  brought  to  reverse  even  what  might  be  called  a  final 
judo-ment  upon  any  matter  which  rested  in  the  mere  discretion  of  the 
Court, (o)  as  for  its  refusal  to  continue  a  case;(/;)  or  to  grant  a 
new  trial  ;(r)  or  to  reinstate  a  case  after  a  nonsuit  or  dismissal  ;(s) 
or  to  allow  a  plea  to  be  amended,  or  a  new  one  to  be  filed  ;(^)  or 
the  allowance  of  a  commission  between  the  discretionary  limits  of  five 
and  ten  per  cent,  as  prescribed  by  the  acts  of  assembly,  (w)  And 
as  a  party  cannot,  with  reason,  complain  of  the  error  of  a  judgment 
which  he  had,  by  his  negligence,  suffered  to  go  against  himself,  or 
which  he  had  expressly  consented  should  be  passed,  he  is  not 
allowed  to  have  a  writ  of  error  upon  a  judgment  by  default  against 
him;(w)  nor  where  the  proceeding  or  judgment  was  had  by 
consent,  or  it  had  been  agreed,  that  no  wTit  of  error  should  be 
brought,  (x)  These  general  limitations  as  to  the  range  of  the  right 
of  appeal,  it  is  evident,  are  all  of  them  well  calculated  to  keep  its 
exercise  in  order,  and  so  far  to  prevent  it  from  being  abused. 

But  it  having  been  found,  that  this  absolute  right  of  appeal, 
even  in  cases  in  w^hich  it  w^as  clearly  allowable,  had  been  often 
abused,  by  being  perverted  to  the  mere  purposes  of  delay,  and  by 
being  made  the  means  of  putting  the  plaintifFs  claim  again  at 
hazard,  after  it  had  been  at  great  trouble  and  expense  sufficiently 
authenticated  in  a  court  of  original  jurisdiction,  it  appears,  that  a  long 
series  of  efforts  have  been  made  to  prevent  or  correct  the  evil  wdthout 
materially  impairing  the  benefit  of  the  right  of  appeal  itself. 

So  far  back  as  the  year  1485,  the  Court  of  King's  Bench,  laid  it 
down  as  a  rule  of  that  court,  that  no  writ  of  error  in  parliament 
should  be  allowed  until  some  error  was  shown  to  it  in  the  record, 
lest  it  should  be  brought  on  purpose  to  delay  execution,  (y)  And 
in  the  next  year,  it  was  provided  by  the  statute,  that  the  party 
should  recover  his  costs,  and  damages  for  his  delay,  and  wrongful 
vexation  in  the  same  by  the  discretion  of  the  court  before  whom 

(n)  2  Bac.  Abr.  454;  Samuel  v.  Juden,  6  East,  333.— (o)  Davis  v.  The  State, 
3  H.  &  J.  154 ;  Gover  v.  Cooley,  1  H.  &  G.  7 ;  Liter  v.  Green,  2  Wheat.  306 ; 
Parsons  v.  Bedford,  3  Peters,  445 ;  Boyle  r.  Zacharia,  6  Peters,  648.— (ja)  Wood 
V.  Younj,  4  Cran.  237.— (r)  Henderson  v.  Moore,  5  Cran.  11 ;  ]\Iaiine  In.  Co. 
V.  Young,  5  Cran.  187.— (s)  United  States  v.  Evans,  5  Cran.  280 ;  Welch  v.  Man- 
deville,  7  Cran.  152.— (/)  Marine  In.  Co.  r.  Hodgson,  6  Cran.  206.— (u)  1798, 
ch.  101,  subch.  10,  s.  2  ;  Nicholls  v.  Hodge.s,  1  Peters,  562  ;  1828,  ch.  26,  s.  5.— 
(w)  Hawkins  v.  Jackson,  6  H.  &.  J.  151,  note.— (.r)  Dormer's  Case,  5  Co.  40  ;  Clare  v. 
Linch,  T.  Raym.  372  ;  Wright  i-.  Nutt,  1  T.  R.  3S8 ;  Camden  v.  Edie,  1  H.  Blac.  21.— 
iy)  Tidd,  Pra.  1074. 

2 


10  RINGGOLD'S  CASE. 

the  writ  of  error  was  sued.(c)  In  the  year  1581,  it  was  made  a 
rule  of  the  Court  of  Common  Pleas,  that  no  supersedeas  should  be 
made  upon  any  writ  of  error  to  reverse  a  judgment  of  that  court 
until  some  manifest  or  pregnant  error  therein  should  be  notified  by 
the  party,  or  his  counsel,  to  the  court  or  one  of  its  judges. (a)  In 
the  year  1605,  it  was  further  provided,  by  statute,  that  in  certain 
enumerated  cases,  no  execution  should  be  stayed  upon  any  judg- 
ment unless  the  person,  in  whose  name  the  writ  of  error  was 
brought,  should,  with  two  sureties,  acknowledge  himself  bound  in 
a  recognizance  in  double  the  sum  recovered,  to  prosecute  his  writ 
of  en"or  with  effect,(6)  and  by  another  statute,  passed  in  the  year 
1661,  the  provisions  of  the  previous  law  were  extended  to  other 
cases,  and  it  was  declared,  that,  in  case  the  judgment  should  be 
affirmed,  the  defendant  in  error  should  have  awarded  to  him  double 
costs  for  the  delay  of  execution,  (c)  Soon  after  which,  in  the 
year  1664,  the  provisions  of  these  statutes  were  further  extended 
to  almost  all  other  cases,  including  by  name,  dower  and  eject- 
ment ;  and  it  was  declared,  that,  in  case  the  judgment  should  be 
affirmed,  the  defendant  should  recover  such  costs,  damages,  and 
sums  of  money  as  should  be  awarded  to  him ;  and  further,  that  the 
court  wherein  the  execution  ought  to  be  granted,  upon  such  affir- 
mation, should  issue  a  writ  of  inquiry,  as  well  of  the  mesne  profits 
as  of  damages  by  any  waste  committed  after  the  first  judgment  in 
dower  or  ejectment ;  and  thereupon  judgment  should  be  given  and 
execution  awarded  for  the  amount  thereof. (rf) 

In  addition  to  these  statutory  provisions  upon  this  subject,  the 
common  law  courts  of  Westminster  Hall  have  undertaken,  by  the 
exercise  of  a  sound  discretion,  to  prevent  the  abuse  of  this  right 
of  appeal  by  refusing  to  stay  execution  where  it  can  be  shewn, 
that  the  writ  of  error  had,  in  truth,  been  brought  for  the  express 
purpose  of  vexation  and  delay. (e)  The  abuse  of  this  right  of 
appeal  still,  however,  continues  to  be  so  great  an  evil  in  England, 
that  it  has  been  recommended  as  proper  to  oblige  the  defendant  to 
bring  the  whole  debt  and  costs  recovered  into  court,  as  the  only 
effectual  means  of  preventing  the  practice,  which  too  often  prevails, 
of  bringing  writs  of  error  for  the  mere  purpose  of  delay,(y) 

(z)  3  Hen.  7,  c.  10 ;  Tidd,  Pra.  1131 ;  ICilt.  Rep.  22S  ;  Shepherd  v.  Mackreth, 
2  K.  Blac.  2S4.— (a)  Tidd,  Pra.  1074.— (i)  3  Jac.  1,  c.  S;  Tidd,  Pra.  1075.— 
(c)  13  Car.  2,  Stat.  2,  c.  2,  s.  10 ;  Shepherd  v.  Mackreth,  2  H.  Blac.  2S6,  3  Blac. 
Com.  410.— (rf)  16  &,  17  Car.  2,  c.  S. ;  Tidd,  Pra.  lOSl.— (e)  Ent^vistle  v.  Shepherd, 
2  T.  R.  78  ;  Christie  v.  Richardson,  3  T.  R.  7S ;  Pool  v.  Charnock,  3  T.  R.  79 ; 
Keinpland  v.  Macauley,  4  T.  R.  436.— (/)  Tidd,  Pra.  1075,  note. 


RINGGOLD'S  CASE.  n 

When  the  appellant  puts  in  bail  in  error,  or  gives  security  as 
required,  notice  thereof  should  be  given  to  the  opposite  party ;  and, 
if  he  does  not  except,  the  bail  is  allowed ;  but,  if  he  does  except, 
then  better  bail  must  be  justified  in  a  manner  similar  to  that  of  jus- 
tifying special  bail  in  an  original  action  ;  and  if  the  defendant  fails 
to  put  in  sufficient  bail  in  error,  the  plaintiflf  may  take  out  exe- 
cution. (^) 

In  all  the  States  of  our  Union,  it  is  believed  that  some  statutes 
have  been  passed  to  prevent  the  abuse  of  this  right  of  appeal.  In 
Virginia,  with  a  view  to  leave  the  right  as  open  and  as  large  as 
possible,  and  yet  to  prevent  a  party  from  resorting  to  it  w4th  any 
hope  of  great  delay ;  it  was  made  the  duty  of  the  judges  of  the 
Court  of  Appeals  to  sit  at  least  two  hundred  and  fifty  days,  unless 
they  should  sooner  despatch  the  business  of  the  court.  (^)  And  a 
statute  of  North  Carolina  has  gone  so  far  as  to  declare,  that  the 
party  appealing  shall  give  bond  with  surety  to  prosecute  his  appeal 
\vith  effect ;  which  bond  shall  be  sent  up  as  a  part  of  the  record ; 
and,  upon  the  judgment  being  affirmed,  the  appellate  court  may 
enter  up  judgment  instanter^  as  well  against  the  sureties  as  the 
principal  in  such  bond  for  the  amount  recovered  in  the  court  below, 
with  costs  and  twelve  per  cent,  interest,  (i) 

In  ^Maryland,  the  regulation  of  this  right  of  appeal,  with  a  view 
to  prevent  its  abusive  exercise,  seems  to  have  been  the  subject  of 
early  and  repeated  legislation, (J)  prior  to  the  passing  of  the 
existing  law  upon  the  subject, (/c)  by  which  all  those  English  sta- 
tutes in  relation  to  the  same  matter,  which  had  been  adopted, (/) 
were  virtually  repealed  so  far  as  its  provisions  were,  in  any  respect, 
incompatible  w4th  them.  It  would  seem,  that  the  English  statute, 
which  gave  double  costs  on  an  affirmance  of  a  judgment  on  a  writ 
of  eiTor,  had  been  adopted  as  a  law  of  this  State,  although  no 
instance  may  now  be  found  in  which  such  costs  have  been 
awarded  ;(?n)  and  it  is  certain,  that  writs  of  enquiry,  in  actions 
of  dower  and  ejectment,  have  been  issued  after  an  affirmance  in 
error ;  and  that  judgments  have  been  entered  on  such  inquisitions, 
although  such  writs  of  enquiry  may  have  now  fallen  into  disuse. (n) 


(?)  Tidd,  Pra.  10S7.— (^)  2  Mun.  Rep.  Intro.  17.— (?)  Yarborough  r.  Giles, 
1  Hayw.  4.5.3  ;  Kinchin r.  Brickell,  2  Hajav.  49.— (7)  1642,  ch.  6  &  34  ;  1678,  ch.  8  ; 
1692,  ch.  9 ;  1695,  ch.  19 ;  1699,  ch.  10 ;  1704,  ch.  S2,  and  1712,  ch.  o.—{k)  171.3,  ch.  4.— 
(l)  Kilt.  Rep.  S3,  92;  223,  2.39.— (m)  Gale  v.  The  Proprietary,  1  H.  Sc  J.  34.3,  note. 
Kilt.  Rep.  92.— (n)  Joan  v.  Shields,  3  11.  Sc  McII.  7 ;  Gore  r.  Worthington,  3  H. 
&  McH.  96 ;  Kilt.  Rep.  239. 


12  RINGGOLD'S  CASE. 

But  in  the  practice  under  our  acts  of  assembly,  in  relation  to 
appeals,  there  is  no  evidence  to  be  found  of  any  course  of  pro- 
ceeding, analogous  to  that  of  the  English  courts,  of  justifying  bail 
in  error. 

It  seems,  that  originally  all  decrees  of  the  High  Court  of  Chan- 
cery of  England  were  final  and  conclusive.  It  not  only  appears, 
that  no  appeal  from  a  decision  of  that  court  was  allowed,  prior  to 
the  year  1581 ;  but,  that  the  right  of  appeal,  as  then  first  introduced, 
remained  entirely  unsettled  until  about  the  year  1662,  when  the 
matter  was  taken  up  ;  and,  after  having  been  much  opposed,  zeal- 
ously debated,  and  maturely  considered,  was  finally  settled  and 
admitted  to  be  as  much  a  constitutional  right  to  appeal  from  a 
decision  of  the  Ilight  Court  of  Chancery,  as  from  a  court  of  com- 
mon law.(o)  But  as,  at  common  law,  no  writ  of  error  will  lie  from 
a  judgment  by  default  or  by  consent ;  so  in  equity  the  decree  or 
order  appealed  from  must  have  been  adverse,  and  not  made  by  the 
express  or  tacit  consent  of  the  appellant :  as  w^hen  a  party  thinks 
proper  not  merely  to  decline  opposition  to  measures  which  the  court 
would  enforce  ;(p)  but,  by  himself  or  his  counsel,  consents  to  a 
decree  or  order,  there  lies  no  appeal  from  it,  even  although  he  gave 
no  such  authority  to  his  solicitor ;  his  remedy  being  against  his 
counsel  ;(§')  nor  can  any  appeal  be  made  generally  available  from 
a  decree  by  default,(?-)  or,  as  it  would  seem,  from  a  decree  taking 
the  bill  pro  confesso.{s) 

The  general  rule  of  the  common  law,  which  postpones  the  exer- 
cise of  the  right  of  appeal  until  after  the  final  judgment  of  the 
original  court,  is  founded  in  sound  sense  ;  and,  as  is  evident,  should 
be  as  closely  followed  as  practicable  in  allowing  appeals  from  the 
Court  of  Chancery.  Therefore,  it  has  been  held,  that  no  appeal 
can  be  allowed  in  equity,  but  from  a  final  decree ;  or  from  an 
order  grounded  on  some  disputed  facts  disclosed  in  the  bill  and 
answer  involving  the  merits  of  the  controversy;  and  which 
order,  if  executed,  would  subject  the  party  to  some  irreparable 


(o)  Gilb.  For.  Rom.  190  ;  ]  Harr.  Pra.  Chan.  676 ;  2  Mad.  Cha.  573  ;  2  Lond.  Jurist. 
107.— (p)  Wood  V.  Griffith,  19  Ves.  550,  1  Meriv.  35.— (g)  Downing  r.  Cage,  1  Eq. 
Ca.  Abr.  165  ;  Buck  v.  Fawcett,  3  P.  Will.  242  ;  Harrison  v.  Rumsey,  2  Ves.  488. 
Bradish  v.  Gee,  Amb.  229 ;    Beresford  v.  Adair,  2  Cox.  156.— (r)  Cunyingham  v. 

Cunyingham,  Amb.  89 ;  Stubbs  v. ,  10  Ves.  30  ;  Charman  v.  Charman,  16  Ves. 

115.— (s)  Davis  v.  Davis,  2  Atk.  24  ;  Maynard  v.  Pomfiet,  3  Atk.  468 ;  Carew  v. 
Johnson,  2  Scho.  &,  Lefr.  300 ;  Jopling  v.  Stuart,  4  Ves.  619 ;  Geary  v.  Sheridan, 
8  Ves.  192  ;  Ogilvie  v.  Heme,  13  Ves.  563  ;  Heyn  v.  Heyn,  Jac.  Rep.  49. 


RINGGOLD'S  CASE.  13 

grievance  ;(f )  or  from  an  order  involving  the  merits,  and  which  order 
could  not  be  followed  out  without,  in  effect,  depriving  the  party  of  the 
benefit  of  an  appeal,  or  rendering  any  appeal  thereafter,  for  correcting 
the  error  of  such  order,  entirely  nugatory  ;(w)  yet  it  is  perfectly  mani- 
fest, from  the  very  nature  of  the  jurisdiction  of  the  Court  of  Chan- 
cery, that  the  exercise  of  its  various  and  flexible  powers,  which 
have  been  expressly  so  contrived  as  to  afford  relief  in  peculiar 
cases,  and  under  emergencies  which  admit  of  no  delay,  where  no 
just  estimate,  in  anticipation,  can  be  made  of  the  periled  rights 
of  the  party,  so  as  to  have  a  satisfaction  secured  to  him,  by  bond 
with  surety,  in  the  event  of  a  loss  ;  or  where  no  adequate  relief  can 
be  obtained  otherwise  than  by  a  prompt  exercise  of  the  conservative 
powers  of  the  court,  an  order  may  be  called  for,  in  the  outset,  or  in 
the  progress  of  a  suit,  the  execution  of  which,  if  suspended  on 
giving  bond  or  otherwise,  would  be,  in  effect,  to  declare,  that  the 
court  should  exercise  no  such  power.  And,  besides,  if  the  progress 
of  a  suit  in  chancery  might  be  delayed,  by  an  appeal  from  any 
of  the  various  interlocutory  orders  which  the  circumstances  of  the 
case  might  require,  the  suit  itself,  by  such  interruptions,  by  abate- 
ments, by  loss  of  testimony,  or  other  accidents,  might  never  be 
brought  to  a  final  hearing ;  or  the  final  decision  might  not  be  until 
afler  the  subject  in  controversy  itself  had  perished,  or  been  entirely 
wasted. 

Hence  it  is  obvious,  that  there  are  many  orders  in  chancery  from 
which  no  appeal  ever  has  been,  or  ought  to  be  allow^ed.  Such  as  an 
order  to  shew  cause  why  any  particular  thing  should  not  be  done ;  or  v 
an  order  for  an  attachment  to  bring  a  party  before  the  court ;  or  an 
ex  parte  order  refusing  an  injunction ;  or  an  order  granting  an  injunc- 
tion until  the  coming  in  of  the  answer ;  or  then,  on  motion,  dissolving 
it;(w)  or  continuing  it  until  the  final  hearing,  or  further  order;  or, 
where  property  was  likely  to  be  lost,  or  materially  injured,  an  order 
appointing  a  receiver  to  take  care  of  it  for  the  benefit  of  all  con- 
cerned •,{x)  or  an  order  upon  a  defendant  to  bring  a  sum  of  money  into 
court,  which  he  had  admitted,  in  his  answer,  did  not  belong  to  him, 
for  the  purpose  of  having  it  invested  so  as  to  be  made  productive 
pending  the  litigation  ;(y)  or  a  mere  discretionar}"^  decree  or  order,  as 


(J.)  Blount's  Case,  1  Atk.  295 ;  Head  v.  Harris,  2  Scho.  &  Lefr.  563  ;  Roche  v.  Mor- 
gell,  2  Scho.  k  Lefr.  724  ;  Buel  v.  Street,  9  John.  Rep.  447 ;  Snowden  v.  Dorsey,  6  H. 
&  J.  114.— (?0  AValdo  V.  Caley,  16  Ves.  214;  Wood  v.  Milner,  1  Jac.  &  Wal.  616. 
{w)  Since  altered  by  1S.32,  ch.  197.— (x)  Altered  by  1830,  ch.  185,  s.  1.— (y)  Altered 
"by  1830,  ch.  183,  s.  1 ;  Thompson  v.  McICim,  6  H.  &  J.  327,  contra. 


14  RINGGOLD'S  CASE. 

for  costs ;  and  the  like.  To  allow  a  party,  on  giving  bond,  or  upon 
any  other  condition,  to  appeal  from  such  orders  as  these,  so  as 
thereby  to  suspend  their  execution,  would  be  a  scandalous  abuse 
of  the  right  of  appeal  ;(z)  it  would  be  to  palsy  the  arm  of  justice  ;(a) 
and  to  make  a  chancery  suit  the  greatest  judicial  nuisance  that  could 
well  be  imagined  ;(6)  or,  as  has  been  justly  observed,  by  sustaining 
appeals  to  such  an  extent,  the  court  of  the  last  resort  would  draw 
into  it  the  whole  business  of  the  Court  of  Chancery,  before  it  had 
become  ripe  for  discussion  and  decision  there ;  and  not  only  render 
the  voice  of  that  court  mute,  and  its  process  nugatory,  but  it  would 
destroy  the  appellate  court  itself,  by  rendering  it  wholly  incompetent 
to  despatch  the  immensity  of  business  which  would  be  drawn 
into  it.(c) 

But  as  the  record  of  a  chancery  suit  contains  all  the  proofs,  as 
well  as  all  the  allegations  at  large,  of  the  litigants,  with  a  recital, 
previous  to  the  exhibits  read,  of  the  substance  and  scope  of  the 
pleadings,  tending  to  the  points  in  controversy  upon  which  the 
decree  is  made,  drawn  up,  as  di-rected  by  the  rule  and  practice,  in 
the  most  concise  manner,  by  the  register,  under  the  inspection  of 
the  solicitors  of  the  parties,  of  what  was  alleged,  relied  on  and 
proved  at  the  hearing,  as  being  parcel  of,  and  as  shewing  the  foun- 
dation upon  which  the  court  had  rested  its  final  decree ;  the  whole 
of  which,  by  an  appeal,  is  removed  to  the  court  above  ;(rf)  there- 
fore, in  order  to  prevent  the  appellant  from  making  a  fraudulent,  or 
abusive  use  of  his  right  of  appeal,  by  laying  back,  at  the  final 
hearing  in  chancery,  for  the  purpose  of  taking  his  opponent  by 
surprise  in  the  appellate  court,  by  insisting  on  testimony  not  pre- 
viously relied  upon;  or  by  taking  exceptions,  or  inaking  'points  not 
taken  or  made  in  the  court  below,  it  has  been  laid  down,  in  general, 
that  no  evidence  can  be  read  and  relied  on  in  the  appellate  court, 
which  was  not  read  and  relied  on  in  the  court  of  chancery  ;(e) 
that  no  exceptions  can  be  taken,  or  point  made,  by  way  of  appeal, 
which  had  not  been  taken  or  made  in  the  court  below ;(/)  that 

(r)  Way  v.  Foy,  IS  Ves.  453.— (a)  Huguenin  v.  Baseley,  15  Ves.  183.— (6)  The 
Warden  of  St.  Paul's  v.  Morris,  9  Ves.  31S.— (c)  Buel  v.  Street,  9  John.  Rep.  448; 
2  Mun.  Rep.  Intro.  Judge  Tucker's  letter,  17 ;  Debates  Virg.  Conv.  of  1829,  page  760 ; 
TheWardenof  St.  Paul's  V.  Moms, 9  Ves. 316;  Covvpert).  Scott,  1  Eden,  17;  Wirdman 
V.  Kent,  1  Brow.  C.  C.  140 ;  Jenour  v.  Jenour,  10  Ves.  .'572.— (rf)  Gilb.  For.  Rom.  162, 
184, 190 ;  Pra.  Reg.  127 ;  1  Harr.  Pra.  Chan.  77,  620  ;  2  Harr.  Pra.  Chan.  664 ;  Wliite 
V.  White,  4  Ves.  35 ;  2  Fow.  Exch.  Pra.  164  ;  Broad  v.  Broad,  2  Cha.  Ca.  161 ;  Gifford 
V.  Hart,  1  Scho.  &  Lefr.  396 ;  Carewi-.  Johnston,  2  Scho.&Lefr.  308;  (e)  Cunyngham 
V.  Cunyngham,  Amb.  90  ;  Button  i>.  Price,  Pre.  Cha.  212 ;  Keen  i'.  Stuckely,  Gilb.  Rep. 
155;  Wood  r.  Griffith,  19  Ves.  550.— (/)  Chamley  v.  Dunsany,  2  Scho.  &  Lefr.  712. 


RINGGOLD'S  CASE.  15 

no  new  matter,  not  in  issue  in  the  court  below,  can  be  insisted  on 
in  the  court  above  ;(^)  and  that  no  account  which  was  not  asked 
for  at  the  hearing  below,  can  be  made  the  ground  of  appeal. (/i) 

Whence  it  appears,  although  in  equity  as  well  as  at  common 
law,  the  parties,  after  framing  their  allegations  to  suit  the  peculiar 
nature  of  their  case,  are  allowed  sufficient  time  and  means  to  bring 
in  all  their  proofs ;  and  are  then  permitted  to  take  any  exceptions, 
and  to  make  any  points  they  may  think  proper,  that  yet  they  are  not 
suffered,  by  an  appeal,  to  cast  their  case  into  a  new  shape ;  or  to 
give  it  a  new,  or  different  aspect  in  any  respect  whatever ;  since  the 
sole  object  of  an  appeal,  in  all  cases,  whether  at  law,  or  in  equity,  is 
not  to  allow  the  appellant  to  present  a  different,  or  a  better  case ;  but 
merely  to  enable  the  appellate  court  to  correct  such  errors  as  it  may 
appear  the  inferior  court  had  fallen  into,  upon  a  review  of  the  identical 
case  upon  w^hich  the  court  below  had  decided,  and  nothing  more. 

No  statutory  provisions  have  been  made  in  England  for  the 
purpose  of  regulating  the  right  of  appeal  from  the  Court  of  Chanceiy, 
or  for  preventing  its  abuse ;  and  therefore  the  matter  has  been 
hitherto  entirely  governed  by  such  rules  as  have  been  laid  down  by 
the  original  and  appellate  tribunals  themselves,  upon  due  considera- 
tion of  the  peculiar  nature  of  the  subject. (i)  It  is  admitted,  that 
very  grave  reasons  should  be  required  to  induce  the  court  to  refuse 
the  benefit  of  appeal  ;(j)  and  that  any  interference  with  the  right 
of  appeal  is  a  delicate  subject,  to  be  applied  with  jealousy. (/c) 
Nevertheless,  as  it  w^ould  be  attended  with  consequences  most 
oppressive,  to  suitors  in  equity,  if  an  appeal  were  allowed,  of  itself, 
to  operate  as  a  stay  of  proceedings,  it  has  long  been  the  established 
practice  of  the  Court  of  Chancery  to  consider  an  appeal  as,  in  no 
case,  having  the  effect  of  suspending  its  proceedings,  unless  an 
order  for  that  purpose  is  made  by  the  court  itself;  or  unless,  in 
special  cases,  the  appellate  court  should  interpose  by  a  special 
order.(/)  And,  even  if  the  decree  were  absolute  and  fmal,  yet,  if 
it  were  of  such  a  nature,  that  the  consequence  of  suspending  its 
execution  would,  in  effect,  be,  if  the  party  in  whose  favour  it  had 
been  made  should  die  before  the  appeal  could  be  heard,  a  reversal 
of  the  decree  without  any  judgment  of  the  court,  the  proceedings 
would  not  be  stayed. (m)     The  Court  of  Chancery  appears  to  have 


(g)  Thompson  v.  Waller,  Pre.  Chan.  29-5. — (h)  Chamley  v.  Dunsany,  2  Scho.  & 
Lefr.  712.— (r)  2  Fow.  Exch.  Pra.  202.— (7)  Wood  v.  Griffith,  19  Ves.  551.— (A-)  Way 
V.  Foy,  18  Ves.  454.— (0  Waldo  v.  Caley,  16  Ves.  213.— (ni)  Waldo  r.  Caley,  16  Ves. 
214 ;  Wood  v.  Milner,  1  Jac.  &  Wal.  616. 


16  RINGGOLD'S  CASE. 

been  governed,  in  this  respect,  by  a  sound  discretion  upon  a 
consideration  of  the  peculiar  nature  of  each  case ;  so  that,  in  fact, 
the  hearing  of  a  petition,  to  stay  its  own  proceedings,  pending  an 
appeal,  is,  in  some  sort,  a  summary  rehearing  of  the  case  itself  (w) 

Upon  all  such  occasions,  however,  the  court  gives  a  certain  degree 
of  credit  to  its  own  decree,  supposing  it  to  be  right,  unless  strong 
ground  is  shewn  for  a  contrary  conclusion,  more  than  the  mere 
dissatisfaction  of  the  party  appealing.  And,  in  order  to  induce  the 
court  to  regard  the  case  as  reasonably  doubtful,  at  least  two  counsel, 
who  the  court  will  not  presume  to  act  so  unworthily  as  to  state  what 
they  do  not  know  and  believe,  must  certify,  that,  in  their  opinion, 
there  is  just  cause  for  appealing. (o)  It  must  appear,  that  the 
application  for  an  appeal  has  not  been  unreasonably  delayed  ;(p) 
and,  although  an  appeal  may  be  taken  from  a  decree  to  account, 
yet  the  court  will  proceed  to  have  the  account  taken  pending  the 
appeal.(5')  In  granting  a  stay  of  its  proceedings,  the  Court  of 
Chancery,  generally,  imposes  such  terms,  by  ordering  the  sum 
decreed  to  be  paid  into  court,  and  so  invested  as  to  be  productive 
pending  the  appeal,  or  by  appointing  a  receiver,  or  by  requiring 
such  security,  as  will  afford  to  the  party  in  whose  favour  the  decree 
has  been  made  a  reasonable  assurance,  that  there  shall  be  no  unjust 
delay  in  prosecuting  the  appeal,  or  any  material  loss,  or  irreparable 
injury  sustained  by  a  suspension  of  the  proceedings. (r) 

In  England,  the  rules  prescribing  the  extent  of  the  right  of  appeal 
from  the  inferior  Courts  of  Admiralty,  and  the  regulations  by  which 
its  exercise  is  prevented  from  being  abused,  are  nearly  similar  to 
those  by  which  the  right  of  appeal  is  limited,  and  its  exercise 
restrained  from  decrees  of  the  High  Court  of  Chanceiy.(s)  Here, 
however,  in  the  federal  courts,  no  appeal  is  allowed  in  any  case  of 
admiralty  and  maritime  jurisdiction,  but  from  the  final  decree,  or 
sentence  of  the  court  ;(^)  and,  if  such,  final  decree  be  not  appealed 
from,  no  appeal  lies  from  any  subsequent  proceeding  upon  the 
summary  judgment  rendered  on  a  bond  for  the  appraised  value,  or 
upon  an  admiralty  stipulation  taken  in  the  case  to  enforce  the  decree; 


{11)  Willan  V.  Willan,  16  Ves.  217 ;  Monkhouso  v.  The  Corporation  of  Bedford, 
17  Ves.  380  ;  Wood  v.  Griffith,  19  Ves.  551.— (o)  Huguenin  v.  Basely,  15  Ves.  183. 
(jp)  Savage  v.  Foster,  9  Mod.  33 ;  Gwynu  v.  Lethbridge,  14  Ves.  585. — {q)  Popham 
r.  Bampfield,  1  Vern.  344 ;  Nerot  v.  Burnard,  2  Russ.  56. — (r)  Willan  v.  Willan, 
16  Ves.  216 ;  Monkhouse  v.  The  Corp.  of  Bedford,  17  Ves.  380  ;  Way  v.  Foy,  18  Ves. 
452;  Huguenin  v.  Basely,  15  Ves.  180.— (s)  Clarke's  Praxis,  tit.  54&  55.— (<)  Act. 
Cong.  24th  Sept.  1789,  ch.  20,  s.  21  8t  22. 


RINGGOLD'S  CASE.  17 

the  proceedings  in  such  cases,  and  the  awarding  of  execution  being 
considered  incidents  exchisively  belonging  to  the  court  in  possession 
of  the  principal  case.(«)  So  too  in  the  federal  courts  there  can  be 
no  appeal  in  a  chancery  suit,  but  from  the  Jinal  decree. (i^)  A  decree 
for  the  sale  of  mortgaged  properly  has  been  deemed  a  final  decree 
within  the  meaning  of  the  act  of  Congress  li^x)  but  it  has  been  held, 
that  an  order  overruling  a  plea  of  the  statute  of  limitations,  and 
directing  the  defendant  to  answer  ;(^)  or  an  order  dissolving  or  refus- 
ing to  dissolve  an  injunction,  is  not  a  decree  from  wdiich  an  appeal 
will  lie.(-)  It  is  believed,  that  in  all  the  States  of  our  Union,  in  which 
distinct  Courts  of  Chancery  exist,  or  in  which  any  of  their  inferior 
and  original  tribunals  have  been  invested  with  the  powers  of  a  Court 
of  Chancery,  the  range  of  the  right  of  appeal  has  been  more  or 
less  limited ;  and  that  some  regulations  have  been  adopted  with  a 
view  to  prevent  the  abuse  of  its  exercise. (a)  In  North  Carolina 
all  original  jurisdiction  in  equity,  beyond  a  small  amount,  was  given 
exclusively  to  the  Superior  Courts  of  Law  and  Equity,  which  were, 
at  one  time,  courts  of  last  resort,  and,  of  course,  there  could  be 
no  appeal  in  equity  from  any  of  their  decisions. (6) 

In  Maryland,  although  it  appears,  that  the  Court  of  Chancery 
was  one  of  the  earliest  of  the  judicial  establishments  of  the  Province, 
yet  there  is  nothing  which  shews,  that  an  appeal  was  ever  allowed 
from  any  of  its  decrees,  until  it  was  expressly  provided  for  by  the 
legislature.  The  act  for  regulating  writs  of  error  and  granting 
appeals  from  and  to  the  courts  of  common  law;(c)  is,  as  its  title 
indicates,  like  all  the  previous  acts  upon  the  same  subject,  expressly 
confined,  in  all  its  provisions,  to  cases  at  common  law;  and  has 
been  followed  out  by  a  practice,  in  some  particulars,  different  from 
that  of  the  English  courts  in  like  cases,  (c^)  The  existing  act  of 
assembly,  which  allows  of  appeals  from  Chancery,  seems  to  have 
been  a  re-enactment  of  a  law  which  had  been  passed  a  few  years 
before  ;(e)  it  enacts,  that  it  shall  be  lawful  for  any  person  who 
conceives  himself  "  aggrieved  by  any  decree  of  the  Chancery  Court, 
to  have  an  appeal  to  the  governor  and  council,"  the  then  court  of 
appeals.(/)     It  is   not  said,  that  the   right  of  appeal  shall  be 


s.  zz 


(u)  The  HoUen  &  Cargo,  1  Mason,  4.31.— (u')  Act  Cong.  24th  Sept.  1789,  ch.  20, 
22.— (j:)  Ray  r.  Law,  3  Cian.  179.— (i/)  Rutherford  v.  Fisher,  4  Dal.  22.— (z)  Young 
V.  Grundy,  6  Cran.  51;  Gibbons  v.  Ogdcu,  6  Wlicat.  448.— (a)  7  John.  Cha.  cZ 
Gen.  Index,  22;  Hening  &  Munfbrd's'llep. ;  4  Dosau.  Rep.— (6)  Haywood's  Rep. 
(c)  171.3,  ch.  4.— (d)  The  State  r.  Buchanan,  5  II.  ilv  J.  331.— (<)  17is'  ch  10  •  17'>0 
ch.  20.— (/)  1721,  ch.  14,  s.  3.  '      "' 

3 


18  RINGGOLD'S  CASE. 

extended  to  any  order,  decision,  or  decretal  order,  but  simply  to 
"any  decree  of  the  Chancery  Court;"  whence,  it  would  seem,  that 
the  right  of  appeal  might  have  been,  and,  there  is  some  reason  to 
believe,  actually  was  construed,  under  that  law,  to  extend  only  to 
final  decrees. (o)  But  it  is  well  known,  that  the  Court  of  Chancery 
of  JNIaiyland  had,  from  the  very  outset,  and  always,  governed  itself 
according  to  the  principles  and  rules  of  its  prototype,  the  Court  of 
Chanceiy  of  England  ;(/i)  and  that  the  right  of  appeal  was  not 
confined  to  mere  final  decrees,  seems  to  have  been  admitted  and 
affirmed  by  one  of  the  most  important  and  best  considered  acts  of 
assembly,  in  relation  to  matters  of  equity;   in  which  it  is  said, 

{g)  Slye  v.  Llewellin,  May,  1721. — On  motion  of  Mr.  Daniel  Dulaney,  of  counsel 
for  the  defendant,  it  is  ordered,  that  the  Injunction  in  this  cause  be  dissolved ;  and  that 
there  go  an  order  to  the  Sheriff  to  repossess  Mr.  Richard  Llewellin,  the  defendant,  with 
the  lands  in  the  bill  mentioned,  pursuant  to  a  former  order  of  this  Court,  made  May, 
1719 ;  and  that  the  bill  be  retained ;  and  ordered  hearing  next  court.  Whereupon  Mr. 
William  Cuming,  of  counsel  for  the  complainant,  moves  for  an  appeal  from  this  order 
to  the  High  Court  of  Appeals,  the  Injunction  being  dissolved,  and  a  writ  of  possession 
ordered.  Which  appeal  is  denied  by  his  Honor  the  ChanceUor,  the  cause  being  not 
yet  determined. — Chan.  Proc.  lib.  P.  L.  595. 

(A)  Co  WELL  iJ.  Seybrey. — Mr.  Moorecroft,  attorney  for  the  plaintiff,  moves  against 
the  defendant  for  a  commitment  against  him  to  the  Sheriff  of  Saint  Mary's  county, 
until  he  do  pay  his  contempt,  and  put  in  a  perfect  answer  to  the  complainant's  bill, 
tliere  being  an  attachment  issued  against  him  for  want  of  an  appearance.  Mr.  Rozier, 
attorney  for  the  defendant,  puts  in  a  demurrer  to  the  plaintif}"'s  bill.  Mr.  Moorecroft 
prays  the  judgment  of  the  Court  upon  the  said  demurrer ;  and  further  moved,  that 
the  defendant  was  summoned  to  answer,  and  ought  not  to  put  in  a  demurrer. 

2d  June,  1669,  Calvert,  Chancellor. — The  defendant,  upon  serving  of  a.  subpoena  to 
appear  and  answer,  may  put  in  a  plea,  answer,  or  demurrer ;  and  the  same  shdl  stand 
good  as  if  he  had  put  in  an  answer,  according  to  the  practice  of  the  Chancery  Court 
in  England,  the  rules  of  which  court,  as  to  that  particular,  were  read.  Whereupon 
it  is  ordered,  that  the  said  demurrer  be  set  down  to  be  argued  upon  Friday  next,  of 
which  all  parties  concerned  are  hereby  to  take  notice 


In  this  cause,  the  Court  caused  the  late  Sheriff  of  Talbot  county,  to  whom  it  was 
alleged  the  said  attachment  was  directed,  to  return  his  writ ;  he  doth  not  appear,  nor 
had  he  returned  that  writ  to  the  new  Sheriff,  being  present  in  court. 

It  was  thereupon  ordered,  that  the  respective  Sheriffs  of  the  respective  counties 
within  this  Province,  do,  by  themselves,  or  their  deputies,  or  attorneys,  attend  every 
court  held  here  at  Saint  Mary's,  for  the  Chancery  and  Provincial  Courts,  to  answer 
to  the  said  Courts  for  the  return  of  writs  to  them  directed,  as  they  will  answer  tlie 
contrary  to  the  said  Courts  at  their  perils. — (1785,  ch.  72,  s.  23.) 

Ordered  likewise,  that  the  said  defendant  Seybrey  do  pay  unto  the  plaintiff,  or  his 
attorney,  twelve  shillings  and  sixpence  for  his  costs  upon  the  contempt  of  setting  an 
attachment ;  that  he  be  committed  to  the  custody  of  the  Sheriff  of  Saint  Mary's  till 
he  pay  the  same.  The  defendant  said  he  had  no  money ;  but  Mr.  Rozier,  his  attorney, 
engaging,  in  open  court,  to  pay  the  same,  the  said  commitment  is  discharged. — Chan. 
Proc.  lib.  C.  D.  5 ;  5  Franldin's  Works,  355 ;  Digges'  Lessee  v.  Bealc,  1  H.  & 
McH.  71. 


RINGGOLD'S  CASE.  19 

*'that  all  appeals  from  the  decisions,  orders,  and  decrees  of  the 
Chancery  Court,  in  cases  where  appeals  properly  lie,"  shall  be 
made  within  nine  months,  &c.  ;(t)  which  declaration,  it  was  after- 
wards enacted,  should  "  be  confined  to  decretal  orders. "(y)  Whence 
it  may  be  fairly  inferred,  that  allhouo;h  the  range  of  the  right  of 
appeal  might  have  been,  under  the  previous  laws,  construed  to 
be,  at  least,  coextensive  wdth  the  right  of  appeal  from  the  Court 
of  Chancery  of  England,  yet  by  this  last  law  it  was  intended  to 
reduce  it  within  much  narrower  limits,  by  declaring,  that  it  should 
"be  confined  to  decretal  orders." 

Consequently,  although  it  may  be  questionable,  in  many  cases, 
whether  an  appeal,  which  would  be  allowed  in  England,  should  be 
granted  here,  yet  it  would  seem  to  be  perfectly  clear,  that  where  an 
appeal  will  not  lie  from  the  English  Court  of  Chancer^',  it  cannot 
now  be  granted  from  this  court. (^')  Hence,  as  it  is  settled  in 
England,  that  there  can,  in  general,  be  no  effectual  appeal  from  a 
decree  by  default ;  or  from  a  decree,  to  the  passing  of  which  the 
party  has  assented;  or  which,  by  his  negligence  or  omission,  he 
has  permitted  to  go  against  him,  it  would  seem  necessarily  to  follow, 
that  no  appeal  ought  to  be  allowed  to  a  party  against  whom  any 
such  decree  had  been  passed  by  this  court,  either  in  the  ordinary 
course,  or  according  to  the  special  provisions  of  the  act  of  assembly, 
which  authorizes  the  court  to  proceed  ex  parte  ;{l)  or  under  any  of 
the  acts  which  authorize  the  court  to  take  the  bill,  pro  confcsso,  as 
against  an  absent,  or  a  contumacious  resident  defendant ;  since  the 
right  of  appeal  has  been  reserved  to  such  a  party  by  no  act  of 
assembly,  in  any  case  whatever;  and  if  he  w^ere,  notwithstanding, 
to  be  suffered  to  appeal,  such  a  decree  would  be  thereby  rendered, 
in  a  great  measure,  utterly  futile ;  and  he  might  thus  be  enabled  to 
turn  his  own  negligence  to  his  particular  benefit,  by  taking  advan- 
tage of  errors  and  omissions  in  the  proceedings,  which  must  have 
been  waived,  or  might  have  been  cured,  or  provided  for,  had  he 
appeared  and  answered.  But  this  is  a  matter  which  yet  remains 
to  be  carefully  considered  and  finally  determined  by  the  proper 
tribunal. 

The  act  for  regulating  the  granting  of  appeals  from  and  to  the 
courts  of  common  law,  declares,  that  the  method  and  rule  of  the 
prosecution  of  appeals  shall  be  in  the  manner  and  form  as  therein 
expressed,  that  is  to  say,  the  party  appealing  shall  procure  a  tran- 

(0  1783,  ch.  72,  s.  27.— (;•)  181S,  ch.  193,  6.  1.— (A-)  But  see  1830,  ch.  185, 
and  1832,  ch.  197.— (0  1820,  ch.  161,  s.  1. 


20  RINGGOLD'S  CASE. 

script  of  the  full  proceedings  of  the  court  whence  such  appeal  shall 
be  made  under  the  hand  of  the  clerk  of  the  said  court  and  seal 
thereof,  and  shall  cause  the  same  to  be  transmitted  to  the  court 
before  whom  such  appeal  is  to  be  heard ;  and  also  in  the  same  court 
file,  in  writing,  according  to  the  rule  of  the  same  court,  such  causes, 
or  reasons,  as  he  had  for  making  the  appeal ;  upon  which  transcript 
the  Court,  to  whom  the  appeal  shall  be  made,  shall  proceed  to  give 
judgment. (?rt)  After  which  the  legislature  further  declared,  "that 
appeals  from  the  Court  of  Chancery  to  the  Court  of  Appeals,  shall 
be  subject  to  the  same  regulation  and  limitation,  as  to  the  prose- 
cution of  them,  as  appeals  from  the  courts  of  common  law  are.(n) 
But  there  is  no  act  of  assembly  which  directs,  that  the  execution 
of  a  decree  in  chancery  shall,  in  any  case,  be  stayed  on  the  appel- 
lant's giving  bond,  with  sureties,  for  the  prosecution  of  his  appeal, 
or  which,  in  any  manner  whatever,  prescribes  the  terms  upon  which 
any  appeal  may  be  granted ;  or  the  conditions  upon  wliich  the 
execution  of  any  decree  of  the  Court  of  Chancery  shall  be  delayed 
until  the  appeal  can  be  heard  and  determined.  As  to  all  such 
matters,  therefore,  this  Court  has  always  been,  as  it  now  is,  governed 
by  the  analogous  practice  of  our  own  courts,  so  far  as  it  can  be  so 
considered,  and  by  the  rules  and  practice  of  the  English  Court  of 
Chancery  in  like  cases. (o) 

There  are  some  cases  to  be  found  among  the  proceedings  of  the 
Chancery  Court,  during  the  provincial  government,  in  which  it 
appears,  that,  here  as  in  England,  the  decree  has  been  introduced 
by  a  brief  recital  of  the  allegations  and  proofs  in  the  case ;  but 
there  are  few  instances  of  the  kind  to  be  met  with  since  the  revo- 
lution, (p)  Nothing,  however,  has  been  more  common  than  for 
the  Chancellor  himself  to  state  the  case  and  to  give  his  opinion,  in 
writing,  upon  it  as  introductory  to  his  decree.  But  neither  of  these 
modes  of  proceeding  can  be,  or  indeed  ever  have  been  regarded  by 
the  appellate  court  as  sufficiently  showing  what  were  the  excep- 
tions and  points  in  controversy  before  the  court  below.  In  the 
recital  of  the  allegations  and  proofs  it  could  not  but  often  happen, 
that  much  was  stated  which  had  not  been  at  all  controverted ;  and 
as  the  recital  was  made  under  the  sanction  of  the  Chancellor  it 


{m)  1713,  ch.  4,  s.  4.— (?;)  1729,  ch.  3,  s.  3.— (o)  But  see  the  act  passed  since 
1826,  ch.  200.— (p)  The  Proprietoiy  v.  Jenings,  1  H.  &  McH.  140;  Sparrow  r. 
Gassavvay,  1733;  Chan.  Proc.  lib.  J.  R.;  No.  2,  p.  405;   O'Brien  v.  Connor,  2  Ball 

6  Bea.  146;  Gregory  v.  Molcsworth,  3  Atk.  627;   Ex  parte  The  Earl  of  Ikhester, 

7  Ves.  373. 


RINGGOLD'S  CASE.  21 

followed,  on  the  other  hand,  that  much  matter  might  have  been  put 
aside,  or  omitted,  which  one  or  other  of  the  parties  had  deemed  of 
great  importance,  and  upon  which  he  had  earnestly  relied,  (p)  The 
opinion  of  the  Chancellor,  it  is  also  evident,  should  still  less  be 
relied  on  as  to  what  were  tlie  points  made  before  him ;  because, 
like  all  other  judges,  he  expresses  an  opinion  on  such  points  only 
in  the  case  as  appears  to  him  to  be  decisive ;  and  passes  over  all 
others  unnoticed  ;  or,  indeed,  as  sometimes,  though  rarely  happens, 
he  takes  a  view  of  the  case  which  renders  it  wholly  unnecessary 
to  pay  the  least  attention  to  any  one  of  the  points  that  have  been 
made  by  either  of  the  parties  to  the  controversy. (9) 

Yet  it  is  all  important  to  the  due  administration  of  justice,  in  all 
cases,  that  "  the  full  proceedings  of  the  court,"  appealed  from, 
with  an  exact  exhibition  of  tlie  exceptions  and  points  there  taken 
and  made,  and  nothing  more,  should  be  as  amply  and  correctly 
spread  out  and  presented  before  the  revising  and  appellate  court  as 
they  were  before  the  court  below.  For  it  is  perfectly  manifest, 
that,  as  on  the  one  hand,  the  case  should  not  be  taken  in  frag- 
ments, upon  successive  appeals,  or  with  any  additions  ;(r)  so,  on 
the  other,  the  parties  should  not  be  permitted  to  deviate  from  or 
enlarge  the  ground  occupied  by  them,  in  the  court  below,  by  tak- 
ing any  other  exceptions,  or  making  any  new  points.  Because,  in 
passing  upon  any  such  new  matter  the  Court  of  Appeals  cannot 
act,  according  to  the  terms  of  its  constitution,  merely  as  a  tribunal 
for  the  revision  and  correction  of  errors ;  but  must  necessarily 
step  beyond  its  legitimate  orbit,  and  take  upon  itself  the  power  of 
a  court  of  original  jurisdiction. (5)  And  by  thus  suffering  itself,  in 
any  respect,  to  put  forth  a  power,  beyond  its  appropriate  sphere, 
it  must  inevitably  draw  to  itself  much  business  not  properly  belong- 
ing to  it ;  and  often  take  the  parties  by  surprise  with  exceptions 
and  points  which  had  never  before  been  thought  of;  or  which  had 
been,  until  then,  purposely  concealed,  in  order  to  defeat  a  party  of 
his  just  right  as  authenticated  by  the  judgment  of  the  court  below; 
where  all  such  new  objections  might  have  been  readily  removed, 
had  they  been  then  made,  and  the  parties  apprised  of  them  at  the 
proper  stage  of  the  controversy.  (^) 


(p)  O'Brien  v.  Connor,  2  Ball  &  Bea.  154.— (9)  KeUy  v.  Greenfield,  2  H.  &  McH. 
141.— (r)  1S19,  ch.  144,  s.  4 ;  Canter  v.  The  American  &  Ocean  Insur.  Com.,  3  Peters, 
318.— (s)  Chambers  v.  Wilkins,  2  Litt.  Rep.  146 ;  Huling  v.  Fort,  2  Litt.  Rep.  194. 
(t)  Carroll  v.  Norwood,  4  H.  &  McH.  290  ;  Mahoney  v.  Ashton,  4  H  &.  McII.  323 ; 
Beekman  v.  Frost,  IS  John.  55S. 


22  RINGGOLD'S  CASE. 

There  is,  however,  nothing  to  be  met  with  in  the  proceedings 
of  this  court  going  to  show,  that  the  Court  of  Appeals  has,  at  any 
time,  in  chancery  cases,  rigidly  confined  itself  to  the  exceptions 
and  points  made  in  the  court  below ;  and,  perhaps,  that  court 
might  find  it  difficult  to  do  so,  unless  some  written  evidence  of  the 
exceptions  taken  and  points  made,  in  this  court,  were  placed  upon 
the  record. — And  therefore  it  might  be  well  to  have  it  enacted,  by 
the  legislature,  as  a  general  rule,  in  all  cases  of  appeal  from  the 
Court  of  Chancery,  that  a  party  should  not  be  allowed  to  take  any 
exception,  or  make  any  point  in  the  Court  of  Appeals,  which  he 
had  not  taken  or  made  in  writing  and  filed,  before  the  hearing,  in 
the  Court  of  Chancery. (i^) 

It  appears,  that  this  Court  has  always  exercised  a  discretionary 
power  over  the  right  of  appeal,  analogous  to  that  exercised  by  the 
courts  of  common  law  and  of  chancery  of  England,  so  far  as  to 
prevent  its  abuse,  in  being  taken  Mvolously,  vexatiously,  or  for  the 
mere  purpose  of  delay,  by  refusing  to  grant  an  appeal  from  every 
order  with  which  a  party  may  be  dissatisfied ;  or  by  refusing  to 
stay  the  execution  of  the  order  or  decree,  but  upon  certain  terms, 
or  until  the  party  had  given  bond  with  sufficient  sureties,  as 
required  by  the  act  of  assembly  in  cases  at  common  law,  to  pro- 
secute his  appeal  with  effeci;(w)  and  it  must  also  appear,  that  the 

(m)  Some  partial  provisions  have  been  made  in  relation  to  this  matter  by  the  acts 
of  1S25,  ch.  117,  s.  2;  and  1832,  ch.  302,  s.  5. 

(w)  Rawlings  v.  Stewart. — This  was  a  bill  filed  by  a  morto:agor  ao-ainst  a 
mortgagee  to  redeem ;  and  for  an  injunction  to  stay  waste.  The  injunction  was 
granted  as  prayed.  Among  the  proofs  is  a  deposition  of  a  witness  taken  on  the  10th 
of  January,  1751,  before  the  mayor  of  London  under  the  act  of  5  Geo.  2,  c.  7.  Upon 
all  which  the  following  decree  was  passed. 

"  And  the  said  cause  standing  in  court  ready  for  hearing,  a  day  was  by  this  court 
appointed  for  hearing  thereof,  on  which  day,  being  the  first  day  of  June  in  the  year 
seventeen  hundred  and  eighty,  the  said  cause  coming  on  accordingly  to  be  debated 
before  the  Chancellor  of  Mar}"land,  in  the  presence  of  counsel  learned  on  both  sides, 
the  substance  of  the  complainant's  bill,  the  answer  of  the  defendant,  the  proofs  and 
exhibits  in  the  cause  appearing  to  be  to  the  effect  herein  recited  and  set  forth  • 
whereupon,  and  upon  debate  of  the  matter  and  hearing  what  could  be  alle"-ed  on  both 
sides,  the  court  doth  think  fit,  and  so  order  and  decree  ;  and  accordin"-lv  it  is  this  first 
day  of  June  seventeen  hundred  and  eighty,  by  the  honorable  Court  of  Chancery  of 
Maryland,  and  the  power  and  authority  thereof,  ordered,  adjudged  and  decreed,  that 
the  said  Jonathan  Rawlings  be  let  in  to  redeem  the  land  and  appurtenances  so  as 
aforesaid  mortgaged  by  Aaron  Rawlings  to  William  Hunt,  and  by  him  conveyed  and 
made  over  to  the  said  George  Stewart,  as  set  forth  in  the  bill  of  complaint  a.'bresaid, 
he  the  said  complainant  paying  and  satisfying  to  the  said  George  Stewart  what  shall 
appear  to  be  really  bona  fide,  and  equitably  due  and  owing  for  principal  and  interest 
upon  the  mortgage  aforesaid.  And  that  an  account  be  taken  of  the  principal  and 
interest  really,  bona  fide  and  equitably  due  and  owing  upon  the  said  mortgage,  dis- 


RINGGOLD'S  CASE.  23 

appeal  has  been  taken  from  the  order  or  decree  within  the  time 
limited  by  the  act  of  Assembly,  (a:) 

Where  the  order  or  decree,  appealed  from,  simply  requires  the 
payment  of  a  sum  of  money,  and  nothing  more,  the  rule  has  been, 
as  at  law,  to  require  an  appeal  bond  in  double  the  sum  so  directed 
to  be  paid,  and  costs. (y)  But  on  an  appeal  from  a  decree  to  fore- 
close a  mortgage  of  land ;  or  for  the  sale  of  mortgaged  land ;  or 
for  the  conveyance  of  land  in  specific  performance  of  a  contract, 
and  the  like,  it  would  be  unnecessary  and  improper  to  require  a 
bond  in  double  the  amount  of  the  mortgage  debt ;  or  in  double 
the  value  of  such  an  estate  so  bound ;  which,  although  subject  to 
much  injuiy,  is  yet  in  substance  imperishable  and  immoveable  ;  and 
therefore,  in  such  cases,  the  practice  has  been  to  follow  the  course 
pursued  at  law,  in  the  analogous  cases  of  writs  of  error  in  dower 
and  ejectment,  and  to  require  an  appeal  bond  in  such  a  sum  as  will 
cover  the  whole  amount  of  the  costs  and  of  the  mesne  profits  as 
well  as  damages  by  any  waste  committed  pending  the  appeal, 
which  the  statute  authorizes  the  party  to  have  ascertained  at  law  by 
a  writ  of  inquirj-,  and  to  recover,  in  case  the  appellant  should  fail 
to  sustain  his  appeal. (::)    But  where  the  plaintiff  in  equity  seeks  a 

tinctly  ascertainins;  in  the  said  account  the  credits,  advancements,  and  disbursements 
of  the  said  William  Hunt  made  and  given  upon  the  security,  and  the  payments,  satis- 
factions, and  remittances  made  in  the  lifetime  of  the  said  Aaron  Rawlings,  and  since 
his  decease,  in  discharge  of  the  said  mortgage.  And  the  amount  of  the  sales  of  the 
negroes,  and  other  personal  estate  of  the  said  Aaron  Rawlings  made  after  his  death 
by  the  agent  of  the  said  William  Hunt,  and  for  his  use  ;  also  the  annual  value  of  the 
rents  and  profits  of  the  said  mortgaged  lands  during  the  time  the  said  lands  were  in 
the  possession  of  the  said  William  Hunt,  and  the  annual  value  of  the  rents  and  profits 
thereof  from  the  time  of  the  defendant's  possession  of  the  said  lands  to  the  time  of 
taking  the  said  account ;  and  of  the  repairs  and  lasting  improvements  made  thereon 
by  the  said  defendant ;  and  also  the  waste  and  destruction,  and  the  value  thereof 
committed  by  the  said  defendant  on  the  said  mortgaged  lands  during  the  term  of  his 
possession  aforesaid. — J.  Rogers,  Chancellor." 

The  defendant  prayed  an  appeal  firom  this  decree,  which  was  granted  accordingly ; 
and  he  filed  an  appeal  bond  in  the  penalty  of  fifty  thousand  pounds  current  money, 
with  t\vo  sureties.  The  bond  recites,  that  it  was  given  in  conformity  to  the  act  of 
1713,  ch.  4.  The  Court  of  Appeals  aflirmed  the  decree.  The  record  then  proceeds 
thus  :  "and  at  October  court,  1785,  the  honorable  the  Judges  of  the  High  Court  of 
Appeals  returned  to  this  court  the  transcript  aforesaid  with  their  proceedings  on  the 
same,  to  wit:  and  now  here,  &.c.  to  the  end  of  the  judgment  of  the  Court  of  Appeals, 
&c.  Chan.  Proc.  No.  2,  fi-om  1734  to  1786,  page  62,  113,  and  Slye  v.  Llewellen,  ante 
IS,  note. 

But  this  matter  has  been  since  otherwise  finally  settled,  Thompson  v.  McKim, 
6  H.  &  J.  330  ;  1830,  ch.  185,  s.  1. 

(X)  1785,  ch.  72,  s.  27;  1819,  ch.  144,  s.  4;  1826,  ch.  200,  s.  14.— (;/)  Johnson  v. 
Goldsborough,  1  H.  &  J.  499.— (z)  Wharod  i'.  Smart,  3  Burr.  1823 ;  Thomas  v. 
Goodtille,  4  Burr.  2501. 


24  RINGGOLD'S  CASE. 

specific  performance  of  a  contract,  or  the  benefit  of  the  decree  can 
only  be  had  by  the  delivery,  preservation,  or  sale  of  certain  move- 
able and  perishable  property,  then  it  is  clear,  that  the  penalty  of  the 
appeal  bond  should  be  for  a  sum  at  least  double  the  value  of  such 
property  as  well  as  the  costs,  and  any  particular  sum  of  money 
which  such  decree  may  also  direct  to  be  paid.  There  does  not 
appear,  however,  to  have  been  any  rule  laid  down  by  which  the 
value  of  such  property  is  to  be  ascertained,  for  the  purpose  of 
fixing  the  penalty  of  the  appeal  bond.  The  extent  of  the  original 
jurisdiction  of  the  Federal  Courts,  as  well  as  the  extent  of  the 
right  of  appeal  from  them,  has  been  limited  by  act  of  congress  to 
cases  where  the  matter  in  dispute  exceeds  the  sum  or  value  of  a 
certain  specified  amount. (o)  In  regard  to  which  it  has  been  held, 
that  where,  from  the  nature  of  the  action,  as  in  detinue,  replevin, 
ejectment,  a  writ  of  right,  or  admiralty  proceeding  in  rem  for  a 
forfeiture,  the  property  itself,  and  not  a  debt  or  damages,  is  the 
matter  in  dispute,  the  value  may  be  ascertained  by  affidavits  taken 
on  reasonable  notice  to  the  adverse  party,  or  his  counsel  ;(6)  and 
this  ii  is  evident,  would  be  the  proper  course  to  pursue  for  the  pur- 
pose of  bringing  before  this  Court  the  means  of  making  a  just 
estimate  of  the  value  of  the  property,  in  case  its  value  should  be 
disputed,  in  order  to  ascertain  what  should  be  the  penalty  of  the 
appeal  bond  in  appeals  from  ordei's  or  decrees  in  relation  to  subjects 
of  this  latter  description. (c) 

In  England,  bail  in  error  is  given  by  a  recognizance  acknow- 
ledged in  the  court  below ;  and  if  the  sufficiency  of  the  bail  is 
excepted  to,  the  party  is  thus  called  on  to  justify,  or  put  in  better 
bail.  According  to  the  English  course  in  Chancery,  where  a  party 
is  called  upon  to  give  an  appeal  bond,  or  to  enter  into  a  bond,  or 
recognizance,  for  any  other  purpose,  he  is  required  to  do  so  before 
a  master,  by  whom  the  obligation  must  be  authenticated,  and  the 
surety  approved.  In  Maryland,  the  practice  in  Chancery  is  differ- 
ent, and  although  there  are  many  cases,  as  well  as  those  of  appeals, 
in  which  a  bond  with  approved  surety  is  required  to  be  given  ;  yet 
there  is  no  instance  in  which  a  bond  has  been,  like  a  recognizance, 
required  to  be  acknowledged  or  executed  before  the  Chancellor,  or 
any  officer  of  the  court ;  and  I  have  met  with  but  one  instance  in 


(a)  Act  Cons;.  24  Sept.  1789,  ch.  20,  s.  22.— (b)  Williamson  v.  Kincaid,  4  Dal.  20 ; 
Coiirzo  V.  Stead,  4  Dal.  22  ;  The  United  States  i'.  The  Brig  Union,  4  Cran.  216  ;  Cooke 
t'.  Woodrow,  5  Cran.  14  ;  Rush  v.  Parker,  5  Cran.  287 ;  Green  v.  Liter,  8  Cran.  229. 
(c)  Some  provision  upon  tliis  subject  has  been  since  made  by  the  act  of  1S26,  ch.  200. 


RINGGOLD'S  CASE.  26 

which  any  evidence  of  the  authenticity  or  proof  of  the  execution 
of  such  a  bond  has  been  produced  to  the  Chancellor. (rf)  Although 
in  some  cases  certain  office  bonds  have  been  required  to  be  authen- 
ticated before  some  of  the  judges  of  the  courts  of  common  law ; 
and  to  be  thereupon  recorded,  (e)  But  in  all  cases  in  Chancery 
the  authenticity  of  the  obligation  has  been  assumed,  or  admitted, 
and  the  approval  of  the  Chancellor,  which  is  so  often  spoken  of,  is 
confined ;  first^  to  the  conformity  of  the  instrument  to  the  requisi- 
tions of  the  law,  or  of  the  order  or  decree,  in  pursuance  of  which 
it  had  been  given ;  and  in  the  next  place,  to  the  pecuniary  suffici- 
ency of  the  obligors.  It  is  necessary,  that  the  penalty  of  the 
bond  should  be  double  the  whole  amount  recovered,  or  ordered  to 
be  paid,  and  costs ;  or  in  the  amount  specified  by  the  Chancellor 
in  those  cases  where  it  has  been  submitted  to  his  discretion  to  fix 
the  amount ;  and  also,  that  the  condition  should  correctly  set  forth 
the  judgment,  decree,  or  order  appealed  from,  or  the  object  of  the 
bond  ;  orthat  duty,  the  faithful  performance  of  which  is  intended 
to  be  secured  by  it.  If  the  bond  be  not  correct  in  these  particu- 
lars, it  cannot  operate  as  a  supersedeas,  or  so  as  to  stay  the  execu- 
tion of  the  order  or  decree ;  and  therefore  on  the  fact  being  shown 
to  the  Chancellor  the  party  will  be  permitted  to  proceed  to  obtain 
the  benefit  of  his  order  or  decree. (y) 

The  pecuniary  sufficiency  of  the  sureties  oflfered  is,  however,  in 
this  respect,  a  matter  of  the  first  and  greatest  importance.  For 
although  the  terms  of  the  obligatory  instrument  may  be,  in  every 
particular,  exactly  as  required ;  yet,  if  the  sureties  be  insufficient, 
or  insolvent ;  or  become  so  before  the  event  happens  which  autho- 
rizes the  party  to  have  recourse  to  it  for  the  purpose  of  obtaining 
the  relief  which  it  was  intended  to  secure  to  him,  it  is,  in  point  of 
fact,  as  if  it  had  never  been  given,  or  as  if  it  had  been  originally 
a  mere  nullity ;  and  therefore,  in  all  such  cases  sureties  should  be 
given  who  are  not  only  then  sufficient ;  but  who  are  likely  to  be 
so  when  the  contemplated  event  shall  happen.     Where  money  is 

(rf)  Cox  r.  BozMAN.  In  this  case,  the  bill  having  been  dismissed  with  costs,  the 
plaintiH"  prayed  an  appeal  which  was  granted ;  and  he  thereupon  filed  an  appeal 
bond,  at  the  foot  of  which  is  the  following  certificate :  "  Talbot  Countj',  silicit, 
31st  October,  1785,  I  certify,  that  the  aforegoing  appeal  bond  was  executed,  by  the 
signing,  sealing,  and  delivery  of  the  same,  by  the  persons  thereto  signinj^,  in  the 
presence  of  the  subscriber,  one  of  the  justices  of  the  peace  for  the  county  aforesaid, 
and  in  the  presence  of  John  Tibbel  and  John  Dougherty  tlie  subscribing  witnesses, 
John  Bracco."  Chan.  Proc.  No.  2,  page  250.— (e)  171G,  ch.  1,  s.  3;  17S9,  ch.  26, 
B.  15 ;  1791,  ch   54,  s.  S.— (/)  Johnson  v.  Goldsborough,  1  H.  &,  J.  499. 

4 


26  RINGGOLD'S  CASE. 

to  be  paid,  or  some  duty  is  to  be  performed,  within  some  short 
space  of  time,  a  continuance  of  the  solvency  of  a  surety  may  be 
much  more  confidently  relied  on  than  where  the  debt  is  to  be  paid, 
or  the  duty  to  be  performed  at  some  distant  day.  But  in  reckon- 
ing upon  the  probability  of  a  surety's  continuing  to  be  solvent, 
during  any  given  period,  various  other  circumstances  must  be 
taken  into  consideration  as  well  as  the  lapse  of  time ;  his  continu- 
ing solvency  may  depend,  in  a  great  degree,  upon  the  regular  or 
irregular,  certain  or  hazardous  business  in  which  he  may  be  engaged ; 
thus,  an  agriculturalist,  of  the  same  extent  of  sufficiency,  is  more 
likely  to  continue  solvent  for  the  same  space  of  time  than  a  mer- 
chant. (^)  The  continuing  solvency  of  a  surety  may  also,  in  some 
measure,  depend  upon  the  kind  of  property  held  by  him,  as  being 
such  as  is  ordinarily  acquired  with  a  view  to  a  permanent  holding ; 
such  as  land  for  cultivation  ;  or  such  as  personal  property  procured 
for  consumption,  or  for  the  purpose  of  barter  or  traffic,  which  is 
easily  alienated.  (A)  Hence  it  is,  that  many  of  our  legislative 
enactments  have  required  freeholders,  or  "  persons  of  visible  and 
landed  estates,"  to  be  given  as  sureties,  where  their  solvency  was 
required  to  endure  for  any  length  of  time.(/)  The  continuing  sol- 
vency of  a  surety  may,  likewise,  in  some  degree,  depend  upon  the 
state  of  society  in  the  country.  In  England,  and  in  most  other 
countries  of  Europe,  property  is  either  not  so  free,  or  it  does  not, 
or  cannot  be  made  to  change  hands  so  easily  and  so  frequently  as 
in  ours.  That  very  bold  spirit  of  active  enterprize  of  our  citizens 
which  is,  in  a  great  degree,  the  result  of  our  free  institutions ;  and 
the  unfettered  rights  of  all  property,  render  the  continuance  of  the 
solvency  of  all  persons,  for  any  length  of  time,  less  certain  here 
than  elsewhere. 

In  Maryland,  however,  a  practice  has  long  prevailed,  as  to  the 
mode  of  showing  the  sufficiency  of  appeal  bonds,  and  other  such 
securities,  which  the  Chancellor  has  been  in  various  ways  autho- 
rized or  called  upon  to  demand  and  approve,  by  which  all  these 
considerations  seem  to  have  been  disregarded  or  totally  put  aside. 
For  although  it  was,  on  the  7th  of  March,  1793,  laid  down  as  a 
standing  rule,  that  no  officer  of  this  court  or  his  deputy  should  be 
admitted  as  a  surety  in  any  such  bond  ;  and  also,  by  the  rule  of  the 
14th  of  November,  1801,  that  the  sureties  in  such  bonds  should 
reside  within  the  jurisdiction  of  the  court ;  yet,  in  all  other  respects, 

(g)  1  Ev.  Polh.  Obi.  390.— (h)  1  Ev.  Poth.  Obi.  390.— (i)  1715,  ch.  46,  s.  9; 
1742,  ch.  10  ;  1789.  ch.  26,  s.  15. 


RINGGOLD'S  CASE.  27 

it  has  been  deemed  enough  to  lay  before  the  Chancellor  a  bond 
regularly  drawn,  and  which  purports  to  be  the  authentic  instrument 
of  those  whose  signature  it  bears  ;  and,  if  the  pecuniary  condition 
of  the  obligors  be  known  to  the  Chancellor,  he  approves  or  disap- 
proves of  it  accordingly ;  but,  if  the  Chancellor  has  not  himself 
a  full  knowledge  of  the  situation  of  the  obligors,  then  their  suf- 
ficiency must  be  certified  to  him  by  some  other  judge,  by  a  justice 
of  the  peace,  or  by  one  of  the  solicitors  of  the  court ;  upon  which 
the  bond  is  at  once  approved  without  notice  to  the  opposite  party, 
or  further  inquiry  of  any  sort  ;(j)  for  it  has  rarely,  if  ever,  hap- 
pened, that  the  approval  has  been  opposed,  as  by  exceptions  to 
bail  in  error,  or  to  special  bail ;  and,  if  any  such  were  taken,  there 
does  not  appear  to  be  any  settled  mode  of  proceeding,  by  which 
to  cause  the  sureties  to  justify,  to  ascertain  their  sufficiency,  or  to 
have  better  sureties  given,  which  would  not  be  attended  with  much 
trouble  and  delay.  Such  certificates  of  sufficiency,  it  is  certain, 
are,  in  many  cases,  too  easily  obtained  ;  yet  there  appears  to  be  no 
adequate  mode  of  correcting  the  evil.  The  court  might  censure 
or  punish  one  of  its  own  solicitors  who  should  carelessly  or  unwor- 
thily certify  sureties  to  be  sufficient  who  he  knew  were  not  so  ;  but 
the  Chancellor  can  exercise  no  such  authority  over  a  judge,  or  a 
justice  of  the  peace ;  and  yet  the  most  of  such  certificates  come 
from  justices  of  the  peace.  The  legislature  may  provide  some 
mode  of  guarding  against  these  evils  ;{k)  but  until  they  have  done 
so,  this  court  must,  in  general,  follow  the  existing  and  long  estab- 
lished practice.  The  court  does  not,  however,  mean  to  say,  that 
such  certificates  are  to  be  considered  as,  in  all  respects,  final  and 
conclusive  evidence  of  the  sufficiency  of  the  sureties  oflfered ;  on 
the  contrary,  exceptions  may  be  taken  and  proofs  read ;  and  then, 
if  the  sureties  offered,  on  a  fair  estimate  of  the  whole,  and  on  due 
consideration  of  all  circumstances,  appear  to  be  insufficient,  the 
bond  will  be  rejected. (/) 

From  all  that  has  been  presented  to  the  court,  in  the  case  under 
consideration,  and  on  making  a  fair  estimate  of  the  pecuniary 

(j)  McMuLLEN  V.  BuRRis.  A  dccrcc  having  been  passed  appointing  a  trustee  to 
sell  lands  to  pay  debts,  he  filed  his  bond  accordingly  which  was  endorsed  thus. 
"  Wm.  Pinkney  is  well  acquainted  with  the  circumstances  of  Mr.  Thomas,  and 
begs  leave  to  inform  the  Chancellor,  that  the  within  bond  is  ample  security  for  the 
performance  of  his  trust."  Upon  which  it  was  "  approved  A.  C.  Hanson,  Chan. 
8th  October,  1792."  Similar  in  Deale  v.  Stewart,  1794  ;  Coale  v.  Garretson,  1795, 
&c.  &c.— (/c)  Votes  &  Pro.  Ho.  Del.  4th  February,  1S25.— (Z)  Somo  provision  has 
been  since  made  in  relation  to  this  matter  by  1826,  ch.  200,  s.  15. 


28  HOYE  V.  PENN. 

ability  of  all  the  obligors  in  the  bond,  which  the  court  is  asked  to 
approve,  there  appears  to  be  an  ample  sufficiency  to  answer  the 
amount  of  the  decree  should  it  be  affirmed.  This  court  cannot 
allow  itself  now  to  depart  from  the  existing  practice,  or  undertake 
to  introduce  any  new  rule  in  restraint  of  the  right  of  appeal,  which 
seems  to  have  been  always  most  liberally  indulged.  To  sustain 
the  objections,  that  have  been  urged  upon  the  present  occasion, 
would  be,  in  effect,  to  put  aside  a  practice  which  seems  to  have 
been  long  settled  wdth  the  entire  understanding  and  approbation 
of  the  whole  community. 

Whereupon  it  is  Ordered,  that  the  said  petition  be  dismissed, 
with  costs,  and  tliat  the  bond  be  approved. 


HOYE  V.  PENN. 


On  a  bill  against  A.  Sc  B.  joint  and  several  obligors,  it  was  held,  that  the  trustee, 
appointed  by  the  decree  to  make  sale  of  their  real  estate  for  the  payment  of  tlie 
debt,  should  be  directed  to  sell  so  much  of  the  land  held  by  A.  in  the  first  instance 
as  would  raise  one  half  of  the  debt,  and  to  sell  so  much  of  the  land  held  by  B. 
in  the  first  instance  as  would  raise  the  other  half  of  the  debt,  so  far  as,  in  that  way, 
it  might  be  found  practicable  ;  but  with  power  to  raise  the  amount  by  a  sale  of  the 
whole  at  a  succeeding  period,  if  it  can  be  done ;  or  in  the  first  instance,  if  it  should 
appear  to  be  absolutely  necessary  to  do  so. 

And  where  a  sale  had  been  made,  as  thus  directed,  of  so  much  of  the  land  of  each 
as  not  only  to  pay  the  half  of  the  debt,  due  from  each  ;  but  to  leave  a  surplus  of 
the  proceeds  of  sale  to  be  returned  to  each ;  and  afterwards  the  purchaser  of  the 
land  of  A.  became  wholly  insolvent,  and  the  land  which  had  been  so  taken  from 
A.,  on  a  resale,  did  not  produce  even  a  sufficiency  to  pay  tlie  one  half  of  the  debt 
for  the  satisfaction  of  which  it  had  been  first  sold  :  it  was  held,  that  to  the  amount 
of  the  surplus,  A.  was  to  be  considered  as  a  creditor  entitled  to  come  in  pro  rata, 
with  the  plaintiff,  in  the  distribution  of  the  proceeds  raised  by  tlie  second  sale ; 
but,  that  neither  the  plaintiff,  nor  A.,  could  have  the  deficiency  of  their  respective 
claims  made  up  to  either  of  them  out  of  the  surplus  arising  from  the  sale  of  B.'s 
estate :  the  whole  of  which  should  be  paid  to  him. 

The  mere  forbearance  to  sue,  without  fraud  or  collusion,  cannot  affect  the  obligee's 
rights  against  the  obligor  or  his  surety. 

A  voluntary  conveyance  to  children,  the  grantor  being  indebted  at  the  time,  is  fraudu- 
lent against  creditors,  without  any  other  evidence  of  a  fraudulent  intention. 

There  can  be  no  final  decree  until  all  the  defendants  have  answered,  or  the  case  is  in 
a  situation  to  have  the  bill  taken  jno  confcsso  against  those  defendants  who  have 
not  answered. 

A  party,  against  whom  the  bill  had  been  taken  pro  confesso,  asked  leave  to  come  in, 
for  the  purpose  of  taking  an  appeal,  which  was  reftised ;  he,  nevertheless,  appealed, 
and  carried  the  record  up ;  upon  which  the  Court  of  Appeals  affirmed  the  decree. 


HOYE  V.  PEiSTN.  29 

The  defendants,  as  heirs  or  de\'isees  of  the  deceased  debtor,  to  pay  whose  debts  the 
lands  have  been  sold,  may  have  their  respective  interests  adjusted,  so  as  to  have  the 
surplus  of  the  proceeds  of  sale  distributed  among  them  as  such. 

The  share  or  dividend  awarded  to  a  party  may  be  paid  to  his  solicitor,  or  to  his  attorney 
in  fact,  on  a  power  of  attorney  properly  authenticated. 

This  bill  \vas  filed,  on  the  10th  of  July  1802,  by  Francis  Dea- 
kins,  executor  of  William  Deakins,  and  Benjamin  Stoddart,  against 
Benny  Penn,  Roby  Penn,  Ckarles  Penn,  junr.,  William  Poin,  Betsy 
Penn,  William  G.  Penn,  Sarah-  Penn,  and  Caleb  Penn,  grantees 
and  heirs  of  the  late  diaries  Penn,  senr.,  and  JVathan  Waters  and 
Evan  Gaither.  Before  any  of  the  defendants  had  answered,  the 
plaintiff  Francis  Deakins  died,  and  administration  de  bonis  non  was 
granted  on  the  estate  of  the  late  William  Deakins  to  John  Hoye; 
and  the  defendants,  Charles  Penn,  junr.,  and  William  Penn,  died; 
and  Benny  Penn  and  Roby  Penn  removed  out  of  the  State.  Upon 
which  a  bill  of  revivor  was  filed  by  Hoye  and  Stoddart,  making 
John  Penn  and  Lucy  Penn,  the  infant  heirs  of  the  late  Cliarles  Penn, 
junr. ;  and  Ann  Penn,  and  Greenbury  Penn,  the  infant  heirs  of 
the  late  William  Penn,  defendants ;  and  praying  for  an  order  of 
publication  against  the  absent  defendants,  which  was  passed 
accordingly.  Subpoenas  were  issued  on  this  bill,  some  of  which, 
instead  pf  being  sensed  by  the  sheriff,  as  is  most  usual,  were  served 
by  disinterested  persons  who  made  aflEidavit  of  the  fact ;  which, 
according  to  the  course  of  the  court,  was  held  to  be  sufficient. 

The  bill  states,  that  Ignatius  Pigman,  Joseph  W.  Pigman,  Charles 
Penn,  senr.,   and  JVathan  Waters,  being  indebted  unto  a  certain 
Edward  Gwinn,  in  the  sum  of  <£56S   18^.  \d.,  on  the  21st  of 
September  1788,  gave  their  joint  and  several  bond  to  Gwinn  for 
that  amount;  that  Gwinn  brought  separate  suits   and  recovered 
judgments  on  the  bond  against  Charles  Penn,  senr.,  and  Ignatius 
Pigman,  for  the  principal,  with  interest  from  the  21st  of  September 
1792,  and  costs.    Upon  which  Cliarles  Penn,  sen'r,  brought  a  writ 
of  error,  and  the  plaintiff  Stoddart,  with  the  late  William  Dealcins, 
became  bound  as  sureties  in  a  bond  to  prosecute  the  writ  of  error ; 
that,  the  judgment   having  been    affirmed,  suits    were   severally 
brought  against  the  plaintiff  Stoddart  and  the  executor  of  the  late 
William  Deakins ;  and,  judgments  having  been  obtained  against 
them,  they,  on  the  1st  of  May  1802,  paid  the  whole  debt,  princi- 
pal, interest,  and  costs,  then  amounting  to  ^£934  10s.  9|c?. ;  that  the 
late  Charles  Penn,  senr.,  had,  in  his  lifetime,  conveyed  all  his  real 
estate,  consisting  of  sundry  parcels  of  land  lying  in  Montgomery 


30  IIOYE  V.  PENN. 

county,  to  his  childi'en ;  that  is  to  say,  by  a  deed  of  the  22d  of 
March  1792,  he  conveyed  one  parcel  thereof  to  his  three  sons 
Benny,  Roby,  and  Zachius,  as  joint  tenants,  of  whom  the  two  first 
are  the  survivors ;  and  by  another  deed  of  the  7th  of  May  1792, 
he  conveyed  another  parcel  to  his  two  sons  Charles  and  William 
as  joint  tenants ;  and,  by  a  third  deed  of  the  24th  July  1792,  he 
conveyed  the  residue  of  his  real  estate  to  his  children  Betsy  Penn, 
William  G.  Penn,  Sarah  Pemi,  and  Caleb  Penn,  as  joint  tenants ; 
that  the  defendant  Waters  had  conveyed  all  his  real  estate,  being  a 
tract  of  land  in  Anne  Arundel  county,  to  his  brother-in-law  the 
defendant  Evan  Gaither,  that  those  conveyances  were  made  without 
any  valuable  consideration,  in  fraud  of  these  plaintiffs,  after  they 
had  given  their  bond  to  Edward  Gwinn  ;  and  in  fraud  of  other  cre- 
ditors ;  that  Ignatius  Pigman  was  not  a  resident  of  this  State ;  and 
that  diaries  Penn,  senr.,  was  dead  insolvent.  Whereupon  the 
plaintiffs  prayed,  that  they  might,  by  substitution,  stand  in  the 
situation  which  Edward  Gwinn  would  have  been  in ;  that  the 
defendants  might  respectively  pay  and  contribute  in  satisfaction  of 
the  money  the  plaintiffs  have  paid,  such  sums  as  might  be  proper ; 
and,  that  the  plaintiffs  might  have  such  other  and  further  relief  as 
was  suited  to  the  nature  of  their  case. 

The  order  warning  the  absent  defendants  to  appear  and  answer 
was  published  as  required.  The  defendants  Benny  Penn,  William 
G.  Penn,  and  Elizabeth  Penn,  put  in  their  answers ;  and  the  infant 
defendants  John  Penn,  Lucy  Penn,  Ann  Penn,  Greenbury  Penny 
and  Sarah  Penn,  answered  by  their  guardian ;  Caleb  Penn  died, 
and  his  interests  survived.  By  consent  of  parties,  commissions 
were  issued,  and  testimony  taken  and  returned.  It  was  admitted, 
that  the  late  Charles  Penn,  senr.,  had  executed  the  bond  as  a 
surety  of  Ignatius  Pigman,  and  it  was  agreed  that  the  auditor 
should  state  an  account  of  the  sum  due  to  the  plaintiffs,  subject 
to  all  exceptions.  Pursuant  to  which  agreement  the  auditor 
calculated  the  interest  upon  the  amount  of  the  judgments  up  to 
the  11th  of  July  1810,  making  an  aggregate  amount  then  due  of 
jei394  Os.  5d. 

1st  May,  1811. — Kilty,  Chan. — The  Chancellor  has  considered 
the  arguments  of  the  counsel  on  each  side  in  their  notes  in  writing ; 
and  has  examined  the  proceedings  in  the  suit.  Several  grounds 
of  defence  are  taken ;  first,  that  Pigman  was  in  prosperous  cir- 
cumstances at  the  time  he  purchased  the  goods  from  Gwinn,  and 
remained  so  more  than  seven  years  after.     It  does  not  appear  how 


HOYE  V.  PENN.  31 

this  can  affect  the  right  of  the  complainants ;  unless  some  fraudu- 
lent delay  or  collusion  was  proved  to  the  injury  of  Penn. 

The  bond  to  Edward  Gwinn  was  dated  the  21st  of  September 
1788,  but  was  not  payable  until  the  21st  of  September  1792.  And 
although  it  seems  to  be  admitted,  that  Pigman  was  the  principal, 
and  the  other  obligors  the  sureties ;  yet  they  all  appear  as  princi- 
pals in  the  condition  of  the  bond. 

Suits  were  not  brought  on  the  bond  until  April  1795 ;  but  such 
forbearance  is  not  unusual,  and  does  not  affect  the  right  of  the 
obligee.     And  the  sureties,  if  they  thought  proper  to  pay  off  the 
bond,  might  have  had  it  assigned  to  them,  and  have  brought  suit 
against  the  principal.  The  judgments,  against  Pigman  and  against 
Charles  Penn,  were  obtained  at  October  term,  1796,  with  a  stay 
of    execution   till    the    1st   of    January    1797.     The    judgment 
against   Pigman   was  removed    in    February   1797,    as    appears 
by  the  record,  although  the  writ  of  error  bond  is  left  blank  as  to 
the  dates  ;  and  admitting,  that  this  bond  was  executed  by  Deakins 
and  Stoddart  to  oblige  Pigman,  there  is  nothing  suspicious  in  the 
transaction  ;  and  it  appears  also,  that  a  similar  bond  was  executed, 
about  the  same  time,  by  Charles  Penn,  with  the  same   sureties. 
Edward  Gwinn  died  before  November  1798,  at  which  time  his 
administratrix   had    appeared,  and   the  judgment   was    affiimed. 
There  is  nothing  to  shew,  that  she  was  disposed  to  favour  Pig- 
man;   and  it  is  presumed,  that  she  W'Ould   have  recovered  the 
money  from  him  or  Charles  Penn,  by  execution,  if  in  her  power. 
But  suits  were  brought  against  the  executor  of  Deakins  and  against 
Stoddart  on  the  appeal  bonds,  and  judgments  obtained  thereon  at 
May  and  October  term  1801,  against  them  as  sureties  for  Penn,  as 
well  as  for  Pigm,an.     The  money  was  paid  by  them  on  the  1st  of 
May  1802,  and  the  judgment  against  Pigman  only  was  assigned  to 
them.   This  was  the  commencement  of  their  claim  against  Charles 
Penn  or  his  heir  or  representatives,  and  they  filed  the  present  bill 
in  July  1802.     It  appears  by  the  testimony  of  Benjamin  Ray,  that 
executions  were  issued  against  Pigman,  and  Penn,  which  were  both 
served,  so  that  there  was  no  neglect  on  the  part  of  Gwinn  to  pur- 
sue his  legal  remedy,  supposing,  that  he  was  obliged  so  to  do, 
which  was  not  the  case.     If  Pigman  had  been  possessed  of  visi- 
ble property,  a  resort  to  it  would  have  been  preferable  to  a  suit  on 
the  writ  of  error  bond.     And  as  to  Penn  it  is  to  be  observed,  that 
the    conveyance    of  his    lands    in    1792,  prevented    their   being 
taken  on  the  judgment,  and  affirmance  in  1796  and  1798,  by  which 


32  HOYE  V.  PENN. 

the  debt  might  have  been  satisfied,  and  the  complainants  relieved 
from  their  engagements. 

It  is  also  contended,  that  there  was  an  intention  to  defraud  at 
the  time  the  conveyances  were  made.  This  point  is  not  very  clear 
on  considering  the  time ;  which  was  in  the  year  when  the  bond  to 
Gwinn  became  due ;  and  on  adverting  to  the  evidence  of  Benja- 
min Ray,  and  George  Ray.  But  the  Chancellor  considers  them 
as  voluntary  conveyances,  which,  though  founded  on  a  good  and 
meritorious  consideration  as  to  his  children,  and  grand  children, 
were  not  bo7ia  fide  as  against  creditors,  but  were  a  badge  of  fraud 
in  legal  contemplation ;  and  so  strong  a  one  as  not  to  require  any 
further  proof  of  the  intention,  the  grant  or  being  indebted  at  the  time. 

A  third  ground  is,  that  the  deeds  were  made  to  confirm  gifts 
before  made  to  the  children,  or  in  consequence  of  their  being  settled 
on  the  lands  which  their  father  had  intended  to  give  them.  On 
this  ground  the  Chancellor  does  not  perceive,  from  the  evidence, 
any  acts  or  declarations,  that  would  have  obliged  Charles  Penn,  the 
father,  to  make  the  conveyances  ;  and  even  if  he  had  gone  so  far 
as  to  make  them,  and  had  kept  them  in  his  own  power,  it  would 
not  have  bound  him. 

The  other  ground,  of  the  payment  having  been  made  to  Deakins, 
is  not  supported  by  the  testimony. 

The  Chancellor  is,  therefore,  of  opinion,  that  the  complainants 
are  entitled  to  relief  against  all  the  defendants ;  but  the  manner, 
and  the  proportion  in  which  they  ought  to  contribute,  he  has  not 
considered ;  nor  the  specific  manner  of  granting  the  relief;  both 
which  will  be  determined,  on  the  counsel  for  the  complainant  pre- 
paring a  decree. 

JYathan  Waters,  and  Evan  GaitJier  were  named  as  defendants  in 
the  bill.  There  are  no  answers  by  them,  and  it  is  not  perceived 
how  they  are  disposed  of,  although  Evan  Gaitherh  will  is  among 
the  papers. 

After  which,  the  case  was  again  brought  before  the  court  by  the 
plaintiffs,  who  asked  for  instructions  as  to  the  form  of  the  final 
decree. 

18^/i  September,  1811. — Kilty,  Chai}. — The  Chancellor  has  again 
examined  the  papers  in  this  suit.  It  appears  that  Penn  and  Waters 
were  equally  liable ;  whether  as  principals  in  the  bond  to  Gwinn, 
or  as  sureties.  Waters  was  not  taken  on  the  writ  against  him, 
but  his  property  might  have  been  made  liable. 


HOYE  V.  PENN.  33 

The  appeal  bond  was  given  on  account  of  Pigman,  and  a  simi- 
lar bond  on  account  of  Pom  ;  but  tlie  payment  was  made  on  a 
judgment  on  the  appeal  for  Pigynan,  and  the  relief  is  prayed  on 
the  ground  of  substitution  for  Gwinn, 

The  object  of  the  bill  was  to  affect  the  land  conveyed  by  Penn ; 
and  also  that  conveyed  by  Waters  to  Evan  Gaither,  who  was  made 
a  defendant.  And  the  prayer  was,  that  the  aforesaid  defendants 
might  respectively  pay,  and  contribute  in  satisfaction  of  the  money 
paid  by  the  complainants,  such  sums  as  might  be  proper. 

The  defendant,  Ga'dher,  is  since  dead,  and  has  de\-ised  the  land  in 
question  to  the  defendant.  Waters ;  and  his  wife,  Susanna  Waters,  the 
sister  of  Gaither.  Waters  has  not  appeared  ;  and  an  attachment, 
renewed  in  April  last,  for  his  appearance,  has  been  returned  non  est. 

Before  a  decree  can  be  made,  some  further  proceeding  is  neces- 
sary. Either,  that  Waters  should,  on  application  for  amendment, 
be  struck  out  of  the  bill,  if  the  complainant's  counsel  should  think 
it  safe  and  advisable  to  make  such  an  application ;  or,  that  he 
should  be  compelled  to  appear ;  or  the  necessary  orders  be  applied 
for,  and  passed  for  taking  the  bill,  as  against  him, pro  confesso  :  and 
also,  that  his  wife,  the  other  devisee,  should  be  made  a  party  in 
order  to  have  her  interest  in  the  land  affected.  After  which  the 
decree  should  be  for  a  sale  of  the  interest  of  Waters  and  wife  for 
half  of  the  debt ;  and  Perni's  for  the  other  half,  in  the  first  instance  ; 
but  leaving  each  eventually  liable  for  the  whole. 


On  the  19th  of  September  1811,  the  plaintiffs  filed  a  bill  of  revi- 
vor, in  which  they  stated,  that  Evan  Gaither  was  dead,  and  by  his 
will  had  devised  his  interest  in  the  property  in  dispute  to  JVathan 
Waters  and  Susanna  his  wife ;  against  whom  the  plaintiffs  prayed 
relief,  a  subpcena,  &c. 

2-ithJ\iarch,  1812. — Kilty,  CImncellor. — This  case  had  been  sub- 
mitted on  notes ;  but  was  considered  by  the  Chancellor  as  not  ready  for 
decision  for  the  reasons  stated  in  his  order  of  September  18th,  1811. 

Since  that  time  process  has  issued  against  JVathati  Waters  and 
Susanna  his  wife ;  and,  such  of  the  parties  as  appeared  have  been 
heard  by  their  counsel  at  the  present  term. 

The  Chancellor  finds  no  reason  to  change  the  opinions,  which 
he  had  fonned,  and  which  were  expressed  by  him  in  his  order 
above  refen-ed  to;  and  by  his  remarks  in  writing, dated  the  1st  of 
May,  and  the  iSth  of  September  1811  ;  and  will  proceed  to  decree 
accordingly. 

6 


34  HOYE  V.  PENN. 

3incc  the  order  of  May  1st,  1811,  a  bill  of  revivor  has  been  filed 
by  the  complainants,  Hoye  and  Stoddart,  against  JYathan  Waters 
and  Susanna  his  wife,  devisees  of  Evan  Gaither,  whose  death  is 
therein  stated.  The  death  of  Susanna  has  since  been  suggested 
on  the  docket;  but  her  interest  is  considered  as  surviving  to 
JVatha7i  Waters  ;  and,  against  him  there  has  been  an  attachment, 
with  proclamations,  which  enables  the  Chancellor  to  take  the  bill 
pro  confesso  against  him. 

With  respect  to  the  sums  due,  the  Chancellor  is  of  opinion,  that 
as  there  was  no  decree  to  account,  but  only  an  agreement  of  the 
parties  to  have  the  sum  due  stated ;  the  sum  of  ,£459  9^.  Ihd., 
charged  as  interest  in  the  auditor's  statement,  ought  not  to  be  made 
principal  as  is  usual  in  other  cases. 

It  is  thereupon  Decreed,  that  the  bill  of  the  complainants,  as 
against  JYathan  Waters,  be  taken  pro  coivfesso.  It  is  further  decreed, 
that  the  real  estate,  stated  in  the  bill  to  have  been  conveyed  by 
Charles  Penn,  sen'r,  and  JYathan  Waters,  by  the  deeds  therein 
exhibited,  be  sold ;  or  such  part  of  each  as  may  be  necessary  for 
the  purposes  hereinafter  stated ;  that  John  Brewer  of  the  city  of 
Annapolis  be  and  he  is  hereby  appointed  trastee  to  make  sale 
thereof;  and  that  the  course  and  manner  of  his  proceedings  be  as 
follows,  to  wit :  he  shall  first  give  bond  to  the  State  of  Maryland 
in  the  penal  sum  of  10,000  dollars  with  a  surety  or  sureties  to  be 
approved  by  the  Chancellor,  conditioned  for  the  faithful  discharge  of 
the  trust  reposed  in  him  by  this  decree,  or  any  other  order  or  decree 
in  the  premises.  He  shall  then  proceed  to  give  notice,  by  advertise- 
ment in  such  newspaper  or  papers  as  he  may  judge  prope^r,  for  at 
least  three  successive  weeks,  of  tlie  manner  and  terms  of  sale ; 
which  shall  be,  that  the  purchaser  or  purchasers  shall  give  bond 
with  surety,  to  be  approved  by  the  trustee,  for  the  payment  6i  the 
purchase  money,  with  interest  from  the  day  of  sale,  wuthin  twelve 
months  therefrom.  The  trustee  shall  then  proceed,  according  to  the 
notice,  to  make  sale  of  the  lands  aforesaid  at  public  vendue  ;  or  of 
so  much  thereof  as  will  raise  the  sum  of  ^£934  \0s.  ^Id.  current 
money,  with  interest  thereon  from  the  1st  day  of  May  1802,  until 
paid,  and  the  costs  of  this  suit,  and  the  amount  of  the  commission 
as  lar  as  the  same  can  be  estimated.  And  in  determining  on  the 
quantity  of  each  part,  to  be  first  sold,  the  trustee  shall  sell  the  land 
held  by  the  heirs  of  Penn,  in  the  first  instance,  to  raise  one  half  of 
tlie  debt,  costs,  and  commission  ;  and  shall  sell  the  land  devised  to 
JYathan  Waters,  in  the  first  instance,  to  raise  the  other  half;  as  far 


HO  YE  V.  PENX.  35 

as  this  way  may  be  found  practicable ;  but,  with  power,  according 
to  the  first  part  of  this  decree,  to  raise  the  amount  by  a  sale  of 
the  whole  at  a  succeeding  period,  if  it  can  be  done ;  or,  in  the 
first  instance,  if  it  should  appear  absolutely  necessary ;  subject, 
however,  to  the  ratification  of  this  court.  And  the  trustee  shall 
return  as  soon  as  conveniently  may  be,  a  statement  of  his  pro- 
ceedings under  this  decree,  with  an  affidavit  of  the  truth  thereof; 
and  shall  return  the  bond  or  bonds  taken,  and  the  money  when 
received,  to  be  applied  according  to  the  further  order  of  the  court. 
And  on  the  ratification  of  the  sales  or  any  sale,  and  on  the  pay- 
ment of  the  purchase  money,  and  not  before,  the  trustee  shall 
convey  to  the  purchaser  or  purchasers  the  lands  so  bought,  free 
and  clear  from  all  claim  of  the  defendants  or  any  of  them.  And 
the  trustee  shall  receive  for  his  trouble  such  commission  as  the 
Chancellor  shall  consider  him  entitled  to  on  a  view  of  all  the 
circumstances  of  the  case.  The  sales  to  be  on  the  premises 
respectively,  unless  any  difficulties  or  inconveniences  should  occur 
to  render  such  sales  improper. 


The  defendant,  JVatlian  Waters^  by  his  petition,  filed  on  the  13th 
of  July  1812,  stated,  that  he  wished  to  appeal  from  the  decree ; 
and  therefore  prayed,  that  he  might  be  admitted  to  appear  so  as  to 
become  a  party  for  the  purpose  of  prosecuting  an  appeal. 

13th  July,  1812. — Kilty,  Chancellor. — The  Chancellor  has  con- 
sidered the  within  petition,  and  is  of  opinion,  that  the  prayer  thereof, 
to  admit  the  petitioner  to  appear,  ought  not  to  be  granted. 


JVathan  Waters  nevertheless  appealed,  gave  bond  with  sureties 
which  was  approved.  And,  at  June  terni  1818,  of  the  Court  of 
Appeals,  the  decree  was  affirmed. 

The  trustee  appointed  to  make  the  sale,  reported,  that  he 
had,  on  the  23d  of  November  1818,  with  the  consent  of  the 
possessors,  sold  the  whole  of  the  lands  lying  in  Montgomery 
county  which  had  been  conveyed  by  the  late  Charles  Penn,  sen'r ; 
and  that  the  whole  of  the  lands  lying  in  Ann  Arundel  county 
which  had  been  conveyed  to  the  defendant  JVathaii  Waters,  he 
had  sold  to  James  Ferree.  The  aggregate  amount  of  sales  being 
$10,711  50.  The  usual  order  giving  notice,  having  been  pub- 
lished, and  no  cause  having  been  shewn  to  the  contrary,  these 
sales  were,  on  the  26th  of  January  1819,  absolutely  ratified  and 
confirmed. 


36  HOYE  V.  PENN. 

The  auditor  on  the  26th  of  February  1819  reported,  that  he  had 
examined  the  proceedings,  and  from  them  had  stated  an  account 
betM-een  the  estates  of  Charles  Penn,  sen'r,  deceased,  and  JVathan 
Waters,  and  the  trustee,  in  which  the  proceeds  of  each  estate  were 
apphed  to  the  payment  of  one  half  of  the  complainant's  claim  and 
costs,  and  its  proportion  of  the  trustee's  allowance  for  commission 
and  expenses  ;  and  the  balances  respectively  were  made  payable  to 
the  said  JYathan  Waters,  and  to  those  entitled  to  claim  under  the 
said  Charles  Penn,  sen'r,  deceased.  The  auditor  further  reported, 
that  his  impression  was,  that  the  surviving  grantees  of  CJiarles 
Penn,  sen'r,  were  entitled  to  the  balance  of  his  estate  in  proportion  to 
the  quantity  of  land  held  by  each  in  virtue  of  his  several  deeds. 
But,  it  not  appearing  which  of  his  two  children,  Charles  Pm?i,jun'r, 
and  William  Penn,  survived  the  other,  he  had  not  been  able  to 
make  the  distribution  accordingly. 

From  this  account,  stated  by  the  auditor,  as  of  the  23d  of 
November  1818,  being  the  day  of  the  sales,  it  appeared,  that  the 
amount  of  the  sales  of  Pemi's  estate  was  $4211  50;  that  the 
amount  of  the  sales  of  Waters''  estate  was  $6500;  and  that  tKe 
amount  of  the  plaintiff's  claim,  with  interest  up  to  that  time,  was 
$4968  43 ;  leaving  a  surplus  of  the  proceeds  of  the  sales,  after 
deducting  all  commissions  and  costs,  of  $1306  41,  to  be  distributed 
among  the  grantees  of  Charles  Penn,  sen.,  deceased ;  and,  the  sum 
of  $3515  64,  which  was  awarded  to  the  defendant  Mathan  Waters. 
6th  March,  1819. — Kilty,  Chancellor. — Ordered,  that  the  above 
statement,  as  reported,  be  confirmed ;  and  the  proceeds  applied 
accordingly ;  except  the  sum  to  be  distributed  among  the  grantees 
of  Charles  Penn,  sen'r,  which  is  reserved  for  further  order.  Interest 
to  be  paid  on  the  commission,  claim,  and  dividends,  in  proportion 
as  it  has  been  or  may  be  received.  After  which,  on  the  25th  of 
October  1819,  the  Chancellor  again  ordered  upon  this  account,  that 
the  trustee,  after  retaining  his  commission  and  paying  such  costs 
above  reported  as  may  be  still  due  to  the  ofucers,  may  deposit,  to 
the  credit  of  the  estates,  any  sum  in  his  hands,  or  to  be  received 


It  having  been  shewn,  that  Benny  Penn  had  assigned  a  part  of 
the  land  he  had  purchased  of  the  trustee,  to  Lyde  Griffith;  and 
that  William  G.  Penn  had  assigned  a  part  of  that  which  he  had 
purchased  to  Cnleh  R.  Penn,  and  Ann  his  wife ;  it  was,  on  the 
7th  of  July  1820,  ordered,  that,  on  the  purchase  money  being  paid, 
the  trustee  convey  according  to  those  assignments. 


HO  YE  V.  PENN.  37 

The  plaintiiF,  John  Hoije,  on  the  1st  of  February  1821,  filed  his 
petition,  on  oath,  in  which  he  stated,  that  he  had  agreed  with  the 
plaint  iff,  Stoddart,  that  he,  Hoye,  should  be  at  all  the  trouble  and 
expense  of  prosecuting  this  suit ;  and  also  another  suit  against 
Lloyd  Beall,  in  which  these  plaintiffs  were  jointly  interested  ;  and, 
that  he.  Hoys,  should  be  remunerated  for  all  his  expenses  ;  and, 
also  be  allowed  for  his  trouble  a  reasonable  commission  upon 
whatever  should  be  recovered  ;  and,  that  he  had  accordingly  pro- 
secuted those  suits  ;  and  had,  for  that  purpose,  expended  in  vari- 
ous ways  the  sum  of  $1154  40 ;  that  Stoddart,  after  the  agreement 
with  this  petitioner,  had  assigned  all  his  interest  in  those  suits  to 
Charles  Gassaway,  who  had  refused  to  contribute  any  thing  towards 
the  expense  of  prosecuting  them  ;  that  Gassaway  was  dead,  leaving 
William  Dame  and  Charles  Gassaway  his  executors  ;  that  Stoddart 
was  dead  intestate,  and  no  administration  had  been  granted  on  his 
estate ;  and,  that  the  auditor,  in  the  account  reported  by  him,  had 
awarded  the  amount  claimed  by  the  plaintiffs  to  them  jointly, 
without  making  any  division  of  it  between  them.  Whereupon 
the  petitioner  prayed,  that  this  his  separate  claim  might  be  allowed 
out  of  the  amount  so  awarded  to  the  plaintiffs  jointly,  &c. 

At  the  same  time  the  executors  of  the  late  Charles  Gassaway, 
filed  their  petition,  claiming  the  one  half  of  the  amount  of  the  pro- 
ceeds which  had  been  awarded  to  the  plaintiffs,  for  their  testator, 
who  was  the  assignee  of  the  plaintiff  Stoddart. 

3d  February,  1821. — Kilty,  Cliancellor. — On  considering  the 
above  petition,  it  is  Ordered,  that  the  auditor  state  the  claim  of  the 
petitioner,  (Hoye,)  giving  notice  and  taking  evidence  in  the  usual 
manner.  The  application  of  the  proceeds  under  the  order  of 
March  1819,  (as  to  the  petitioner  and  C.  Gassaway^ s  executors,)  to 
be  suspended  till  further  order.  The  order  to  be  made  on  the  above 
petition,  (by  Gassaivay^s  executors,)  will  depend  on  the  decision  on 
the  petition  filed  by  /.  Hoye. 


In  pursuance  of  this  order,  the  auditor  reported,  on  the  6th  of 
February  1821,  that  the  petitioners,  Hoye  and  Dame,  had  appeared 
before  him,  and  come  to  an  agreement,  according  to  which,  he  had 
made  a  dividend  of  the  amount  allowed  to  the  plaintiffs,  between 
them,  awarding  to  Hoye  the  sum  agreed  upon  ;  which  report  of  the 
auditor  was  immediately  confirmed. 

The  defendant  William  G.  Peim,  filed  two  petitions,  in  which  he 
stated,  that  he  was  interested  as  a  purchaser  of  a  part  of  the  lands 


38  HOYE  V.  PENN. 

in  Montgomeiy  county ;  and  also  as  one  of  the  legal  representatives 
of  his  late  father,  Charles  Peim,  sen'r ;  among  whom  it  appeared, 
that  there  was  a  large  surplus  to  be  distributed.  Whereupon  he 
prayed,  that  the  surplus  might  be  distributed ;  and,  that  the  share 
due  to  him  might  be  deducted  from  the  purchase  money  he  had 
stipulated  to  pay,  &c. 

23d  January,  1823. — Johnson,  Chancellor. — I  do  not  perceive 
by  the  proceedings,  that  the  surplus  ever  has  been  divided.  The 
auditor's  report  of  the  26th  of  February  1819,  makes  a  surplus  of 
$1306  4i  to  be  distributed  among  the  grantees  of  Charles  Penn, 
sen'r,  deceased ;  but,  who  they  are,  or  what  proportion  each  is 
entitled  to  receive,  don't  appear. 

The  exhibits  filed  with  the  petition  of  William  G.  Penn  are  too 
informal,  and  some  of  them  want  even  the  appearance  of  proof. 
An  order,  such  as  requested  by  the  petitioner,  don't  appear,  at  pre- 
sent, proper  to  pass.  But  on  application,  an  order  may  be  obtained 
for  the  auditor  to  state  who  are  entitled  to  the  surplus  and  the  pro- 
portion of  each  ;  and  then,  on  the  petitioner  obtaining  their  receipts 
to  the  trustee,  given  in  conformity  with  the  act  of  1816,  ch.  134, 
the  trustee  will  be  directed  to  execute  a  deed.  In  the  mean  time, 
to  prevent  the  petitioner,  (who  I  presume  is  entitled  to  the  whole 
surplus,)  from  being  compelled  to  pay  money  to  the  trustee,  that 
he  may  hereafter  plainly  appear  entitled  to,  an  order  may  pass 
directing  the  trustee  to  suspend  collecting  that  sum,  with  the  inter- 
est, until  further  order. 

Ordered,  that  the  auditor  state  an  account  in  which  he  will 
designate  who,  and  in  what  proportion,  are  entitled  to  the  surplus 
money  mentioned  in  his  report  of  the  26th  of  February,  1819,  and 
report  the  same.  The  report  to  be  made  from  such  evidence  as  is 
in  the  case ;  and  fi^om  such  as  may  be  laid  before  him.  As  the 
petitioner's  debt  is  suspended,  and  the  time  will  not  expire  perhaps 
before  the  report  of  the  auditor,  it  is  thought  premature  to  act  on 
the  latter  part  of  the  petition. 


On  the  same  day  the  auditor  made  a  report,  in  which  he  says, 
that  it  appearing  now  by  the  deposition  of  Adam  Darby,  filed 
yesterday,  that  William  Penn  survived  Charles  Penn,  jun'r,  he 
had,  in  obedience  to  the  order  of  to-day,  and  in  conformity  with 
his  report  of  the  26th  February,  1819,  stated  the  within  account 
with  the  trustee,  for  so  much  of  the  proceeds  of  the  said  estate,  as 
by  the  account  then  reported,  was  reserved  for  distribution  among 


HOYE  V.  PENN.  39 

the  gi-antees  of  the  said  Charles  Penn,  sen'r.  The  nctt  sum  dis- 
tributed, he  had  first  apportioned  to  the  lands  conveyed  by  the 
deceased,  and  sold  by  the  trustee,  according  to  the  sums  raised  by 
the  several  parcels ;  and  then  distributed  each  portion,  among  the 
surviving  grantees  of  each  parcel  respectively ;  the  deceased's 
deeds  having  made  them  joint  tenants  thereof.  This  report  was, 
by  an  order  of  the  29th  of  January,  1823,  confirmed,  and  the  pro- 
ceeds directed  to  be  applied  accordingly. 

The  trustee  represented  to  the  Chancellor,  that  Benny  Penn,  had 
now  assigned  the  whole  of  the  land  which  he  had  purchased,  to 
Lyde  Griffith,  who  was  his  surety  in  the  bond,  given  to  secure  the 
payment  of  the  purchase  money ;  that  the  land  having  sold  for 
more  than  the  debt  due,  a  portion  of  the  surplus  was  to  go  to 
Benny  Penn,  which  sum  Griffith  wished  not  to  be  compelled  to 
pay  to  the  trustee,  or  to  bring  into  court.  Whereupon  the  trustee 
prayed  the  direction  of  the  court. 

24:th  Jlpril,  1823. — Johnson,  Chancellor. — On  examining  the 
assignment  from  Benny  Penn  to  Lyde  Griffith,  dated  the  7th  July, 
1820, 1  perceive,  that  Griffith  is  to  pay  the  full  purchase  money  and 
interest  due  thereon,  before  the  trustee  is  to  execute  a  deed.  By 
the  terms  of  the  original  decree,  the  trustee  is  restrained  from  giving 
a  deed  until  the  whole  purchase  money  is  paid ;  and  therefore, 
without  a  special  order  to  the  contrarj^,  must  act  accordingly. 
Griffith  may  have  not  only  purchased  the  land  from  Penn,  but  at 
the  time,  it  may  have  been  agreed,  that  he  was  to  have  all  the 
interest  Penn  had  in  the  estate ;  if  so,  and  Penn,  and  himself  will 
join  in  an  application,  the  sum  due  to  Penn  may,  by  an  order,  be 
placed  to  the  credit  of  Griffith ;  and  a  deed  directed  on  the  trustees 
receiving  the  balance ;  otherwise,  in  the  language  of  the  assign- 
ment, he  must  pay  the  full  purchase  money  and  interest. 

After  which,  Benny  Penn  again  moved  to  obtain  further  instruc- 
tion as  to  the  distribution  of  the  proceeds  and  the  amount  to  be 
paid  by  Griffith,  &c. 

IQth  June,  1823. — Johnson,  Chancellor. — Mr.  Benny  Penn  will 
present  this  to  the  trustee,  who  is  willing  that  Mr.  Griffith  should 
come  to  a  settlement  on  payment  of  the  purchase  money,  deducting 
the  amount,  according  to  the  statement  of  the  auditor,  that  is  due 
to  him.  Let  the  trustee  take  Mr.  Pemi's  receipt  for  the  sum  thus 
appearing  due  to  him,  and  that  amount  Mr.  Griffith  can  have 
deducted  from  the  purchase  money.     Rohy  Penn  appears,  by  the 


40  HOYE  V.  PENN. 

report  of  the  auditor,  to  be  equally  entitled  to  the  sum  of  $511  14, 
stated  in  the  report  of  the  auditor,  as  the  proportion  of  Benny  Penn 
and  Roby ;  and  he,  I  am  informed,  is  willing  to  make  a  deduction 
on  account  of  his  having  before  sold  part  of  the  land  to  Fielder 
Parker  ;  Roby  Penn  is  not  in  the  State,  but  has  left  a  person  autho- 
rized to  act  for  him.  On  the  trustee's  obtaining  the  receipt  of  the 
agent  for  the  amount  appearing  due  to  Roby,  that  also  can  be  passed 
to  the  credit  of  Mr.  Griffith  ;  and  he  and  the  agent  can  then  settle 
between  them.  By  this  course,  the  trustee's  proceedings  in  this 
Court  will  comport  with  his  trust. 


Roby  Penn  Q.nd  Betsy  Penn,  then  residents  of  the  State  of  New 
York,  gave  a  power  of  attorney  to  Benjamin  Willet,  authorizing  him 
to  receive  their  dividends  ;  which  power  of  attorney  was  executed 
before  a  magistrate  of  the  county,  in  New  York,  where  they  resided ; 
and  further  authenticated  by  a  certificate,  under  the  seal  of  the  county, 
that  the  magistrate  w^as  properly  commissioned  as  such  at  the  time. 

23(^/t«ie,  1823, — Johssos ,  Chancellor. — Ordered,  that  the  trustee 
be  authorized  to  settle  with  the  attorney  WiUet.(a) 


James  Ferree,  .Abraham  Ferr,ee,  and  Basil  Warfield,  with  the 
trustee,  filed  their  petition,  in  which  they  stated,  that  to  secure  the 
payment  of  the  purchase  money  for  the  lands  in  Anne  Arundel 
county,  which  had  been  sold  to  James  Ferree,  he  had  given  bond, 
with  Jibraham  Ferree  and  Basil  Warfield  as  his  sureties ;  that  James 
had  sold  his  interest  in  the  land  to  Abraham;  that  the  trustee, 
having  brought  suit  and  obtained  judgment  on  the  bond,  had  sued 
out  a  fieri  facias,  which,  having  been  levied  on  the  land,  so  sold 
to  James,  it  had  been  accordingly  advertised  to  be  sold ;  that  if  sold 
by  the  sheriff  for  cash,  it  v/ould  not  sell  for  more  than  one  third 

(a)  So  in  England,  money  has  been  directed  to  be  paid  to  an  attorney  in  fact,  on  a 
power  made  in  Paris,  and  duly  authenticated,  I  Mad.  Rep.  227;  and,  in  some  cases  there, 
it  has  also  been  ordered  to  be  paid  to  the  solicitor  of  the  party  entitled  to  it,  without 
any  special  order  from  the  party  himself;  1  Salk.  157 ;  Doug.  623  ;  1  Blac.  S ; 
1  T.  R.  710  ;  Free.  Clian.  209 ;  J<ic.  Rep.  48.  Here,  on  a  person's  producing  a  power, 
authenticated  under  the  notarial  seal  of  a  notary  public  of  Leghorn,  attested  by  the 
consul  of  the  United  States,  at  that  port,  with  a  translation,  the  claim,  amounting  to 
$2373  77,  was  ordered  to  be  paid  to  him  as  attorney  in  fact  of  the  claimant. —  Taylor 
V.  Casanavc,  MS.  \2th  November,  1817.  But  it  is  usual  to  order  payment  of  small 
sums  on  the  written  draft  filed  of  a  resident  claimant,  or  that  the  money  be  paid  to  his 
solicitor  in  the  case  to  any  amount,  because  of  all  the  pai'ties  being  within  reach  and 
under  the  control  of  the  Court. — Henck  v.  Todhunler,  1  H.  ^  J.  275 ;  Munnikvyson 
V.  Dorselt,  2  H.  ^  G.  374 ;  Brcmck  v.  Burnley,  1  Call.  117. 


HOYE  V.  PENN.  41 

of  its  value ;  and  that  a  sale  on  terms  would  be  more  advantageous 
to  all  concerned.  Whereupon  these  petitioners  prayed,  that  the 
land  might  be  decreed  to  be  sold  upon  such  terms  as  might  be 
deemed  proper,  &c. 

2bth  October  J 1823. — Johnson,  Chan. — It  is  not  perceived,  that 
there  is  any  necessity  for  a  decree  on  the  subject  of  this  application ; 
but  the  trustee  is  authorized  to  suspend  the  sheriff's  sale ;  he  is  the 
legal  creditor,  and  has  the  control  over  the  judgments,  and  can  give 
such  directions  as  shall  appear  most  advisable,  as  the  person  who 
has  the  equitable  title,  the  trustee,  through  whom  the  legal  title  must 
pass,  believes  it  will  be  most  advantageous  for  the  property  to  be 
sold  by  the  trustee,  any  sale  they  may  make,  not  prejudicial  to  the 
interest  of  the  complainants,  will  be  confirmed.  The  trustee  having 
made  the  sale,  will  report  the  same  subject  to  the  order  of  the  Court ; 
if  convenient,  he  will  consult  the  complainant  interested  as  to  the 
terms  of  sale. 

On  tlie  9th  of  June,  1824,  the  plaintiff,  Iloi/e,  and  William  Dame 
and  Charles  Gassaway,  executors  of  the  late  Charles  Gassaway, 
who  was  the  assignee  of  the  late  Benjamin  Stoddart,  filed  their 
petition,  in  which  they  stated,  that  the  land  which  had  belonged  to 
JYathan  Waters  ;  and  which  had  been  sold  to  James  Ferree  for  more 
than  enough  to  pay  one  half  of  the  debt  due  to  the  plaintiffs,  having 
been  ordered  to  be  resold,  because  of  the  non  payment  of  the 
purchase  money  by  Ferree^  had  been  resold  accordingly ;  but,  that 
in  consequence  of  the  depreciation  of  land,  and  the  scarcity  of 
money,  it  had  not,  on  the  resale,  sold  for  a  sufficiency  to  discharge 
one  half  of  the  debt  due  to  the  plaintiffs  ;  that  the  purchaser,  Ferree^ 
and  his  sureties,  were  insolvent ;  that  the  trustee  was  about  to  pay 
the  surplus  of  the  proceeds  arising  from  the  sale  of  the  estate  of  the 
late  Charles  Penn,  sen'r,  to  his  grantees  and  legal  representatives ; 
which  surplus  was  liable  to  these  petitioners  to  make  up  the 
deficiency  due  to  them,  resulting  from  the  resale  of  Waters^  estate, 
and  the  insolvency  of  the  purchaser  thereof,  and  his  sureties. (6) 


{b)  The  South  Sea  Company  of  Eiif;;land  was  created  in  the  year  1710,  under  the 
sanction  oC  a  statute,  (<)  .'hiiie,  c.  21,)  and  had  had  its  connexion  with  the  government, 
from  time  to  time,  extended  until  the  yeai-  171i),  when,  by  means  of  various  misrepre- 
sentations and  fraudulent  practices,  an  act  was  passed,  (6  Geo.  I.,  c.  4,)  deciarinu;, 
that  its  capital  stock  should  be  increased,  and  its  franchises  new-modelled,  by  which 
it  was  almost  immediately  made  the  means  of  spreading  abroad  one  of  the  most 
mischievous  delusions  that  ever  beset  a  civilized  people.  All  ranks  and  classes  were 
led  to  believe,  that  immense  wealth  was  to  be  at  once  acquired  by  this  South  Sea 

6 


42  HOYE  V.  PENN. 

Whereupon  the  petitioners  prayed,  that  the  tinistee  might  be  pro- 
hibited from  making  any  further  payments  to  the  grantees  or  heirs 

scheme.  The  value  of  all  things  was  raised  to  a  great  height ;  but  immediately  that 
the  bubble  burst,  property  returned  to  its  b'ue  value,  and  the  stock  of  the  company 
sunk  almost  to  nothing.  Multitudes  were  totally  ruined ;  many  became  insane  from 
their  disappointments  and  losses,  and  the  whole  nation  was  plundered. — ( Smollet's 
His.  Eiig.  b.  2,  c.  2,  s.  26 ;  S/iel.  Liin.  Intr.  61.)  As  might  have  been  expected,  the 
administration  of  justice  was  not  allowed  to  proceed  in  its  regular  course,  altogether 
unaffected  by  this  strange  and  pernicious  infatuation.  In  many  cases,  where  sales 
had  been  made  under  the  authority  of  the  Court  of  Chancery,  purchasers  were  unable 
to  comply  with,  or  were  ready  to  make  the  gi-eatest  sacrifices  to  disengage  themselves 
horn,  their  contracts.  "  A  court  of  equitj',"  said  the  Chancellor,  in  speaking  of  a  sale 
made  during  this  period,  "  ought  to  take  notice  under  what  a  general  delusion  the 
nation  was  when  this  contract  was  made,  when  there  was  thought  to  be  more  money 
in  the  nation  than  there  really  was,  which  induced  people  to  put  imaginary  values  on 
estates."— (fewYe  v.  Savile,  1  P.  Will.  746  ;  2  Eden,  198.) 

Causes  somewhat  similar,  which  were  in  operation  at  the  time  the  sale  and  the 
resale  mentioned  in  this  case  were  made,  were  attended  with  similar  effects.  In  a 
report  made  by  the  Secretary  of  the  Treasury,  it  is,  among  other  things,  stated,  that 
the  whole  amount  of  money,  metallic  and  paper,  in  circulation  within  this  Union,  in 
the  year  1815,  might  be  safely  calculated  at  not  less  than  one  hundred  and  ten  millions 
of  dollars,  which  was  probably  augmented  in  1816 ;  but  at  the  close  of  the  year  1819, 
it  had  been  estimated,  upon  data  believed  to  be  substantially  correct,  at  forty-Jive 
millions  of  dollars.  According  to  these  estimates,  the  currency  of  the  United  States 
had,  in  the  space  of  three  years,  been  reduced  from  $110,000,000  to  $-15,000,000; 
a  reduction  exceeding  fifty-nine  per  cent,  of  the  whole  circulation  of  1815.  "A  change 
so  violent  could  not  fail,"  says  the  Secretary,  "  under  the  most  favourable  auspices 
in  other  respects,  to  produce  much  distress,  to  check  the  ardor  of  enterprise,  and 
seriously  to  affect  the  productive  energies  of  the  nation."  And  again,  says  the 
Secretary,  "  As  there  is  no  recorded  example,  in  the  history  of  nations,  of  a  reduction 
of  the  currency  so  rapid,  and  so  extensive  ;  so  but  few  examples  have  occurred  of 
distress  so  general,  and  so  severe,  as  that  which  has  been  exhibited  in  the  United 
States." — (Report  of  W.  H.  Crawford  to  the  House  of  Represent.  I2th  February, 
1820,  passes  8  Sc  9  ;  Niles'  Reg.  114.)  It  was  found,  at  the  close  of  the  war  of  1814, 
that  the  State  Banks  had  inundated  the  country  with  their  paper;  and,  instead  of  the 
evil  having  been  corrected  by  the  Bank  of  the  United  States,  it  is  stated,  upon  good 
authority,  that  they  increased  it  by  their  extensive  discounts  and  issues  to  stock- 
holders— (Report  Com.  House  Repr.  to  examine  into  the  proceedings  of  the  Bank, 
\Qih  Jan.  1819,  page  8,) — until,  by  the  natural  and  wholesome  influence  of  a  renewed 
foreign  commerce,  and  the  curtailment  of  their  discounts,  the  State  Banks  were 
enabled  to  resume  specie  payments,  and  the  development  of  the  peculations  and 
frauds  of  those  who  had,  at  that  time,  obtained  the  management  of  the  Bank  of  the 
United  States,  and  the  crippled  and  powerless  condition  of  that  institution,  left  all 
property  free  to  return  to  its  proper  and  real  value. — (Report  Cond.  Bank,  49 ;  Letter  2, 
^pril,  1819,  from  Pres.  Cheves  to  Seer.  Crawford ;  North  Amer.  Review,  January, 
1831,  art.  2.)  A  recollection  of  these  circumstances  seemed  to  be  necessary  to  a 
distinct  understanding  of  the  nature  of  the  extraordinary  depreciation  spoken  of  in 
this  case,  and  to  shew  how  it  happened,  that,  when  this  sale  was  made  to  Ferric,  in 
November,  1818,  people  had  been  induced  "to  put  imaginary  values  on  estates;" 
by  which  so  many  who  purchased  about  that  time  were  afterwards  totally  ruined. 
(Chancellor's  case, post,  note  (q). 


HOYE  V.  PENN.  43 

of  the  late  Cliarles  Penny  sen'r;  and,  that  their  claim  might  be  first 
fully  satisfied  out  of  the  surplus  of  the  proceeds  of  the  sale  of  Pernios 
estate. 

9th  June,  1824. — Johnson,  Chancellor. — Ordered,  that  the  trustee 
do  not  pay  to  the  representatives  of  Charles  Penn,  or  their  orders, 
any  further  sums  of  money  without  the  further  order  of  the  Court, 
or  to  any  other  person  claiming  to  represent  them,  or  to  allow  any 
other  credits  on  account  of  any  receipts  the  representatives  may 
have  or  shall  give ;  provided  a  copy  of  this  order  is  served  before 
the  payment. 

The  trustee,  on  the  11th  of  June,  1824,  reported,  that  under  the 
authority  of  the  order  of  the  25th  of  October,  he  had,  on  the  7th 
then  instant,  resold  the  tract  containing  285  acres,  of  w^hich  James 
Ferree  had  been  the  purchaser,  for  $10  50  per  acre,  amounting 
to  $2992  50;  which  sale  was  absolutely  ratified  on  the  14th  of 
March,  1826. 

The  matter  of  the  petition  of  Hoye  and  others,  filed  on  the  9th 
of  June,  having  been  brought  before  the  Court,  the  solicitors  of  the 
parties  were  fully  heard. 

28^/i  February,  1825. — Bland,  Chancellor. — In  this  case,  the 
lands  of  two  debtors.  Waters  and  Penn,  have  been  sold  under  a 
decree  of  this  Court,  to  pay  the  proportion  due  from  each  of  a  joint 
debt.  The  proceeds  of  the  sales  thus  made,  were  reported  to  be 
more  than  sufl[icient  to  answer  the  whole  demand.  The  securities 
for  the  purchase  money  were  the  lands  themselves,  and  the  pur- 
chasers with  personal  securities.  The  purchaser  of  Waters''  land 
being,  as  is  alleged,  unable  to  pay,  or  insolvent;  that  land  itself 
was  again  sent  into  the  market;  but  owing  to  the  general  depre- 
ciation of  such  property,  it  has  not  sold  for  any  thing  like  the  original 
purchase  money,  or  indeed  a  sufficiency  to  pay  the  proportion  of  the 
debt  with  which  Waters  was  charged. 

But,  when  the  property  was  taken  out  of  the  hands  of  Waters, 
and  sold,  the  parties  tacitly  conceded,  and  the  Court  solemnly, 
adjudged,  by  confirming  the  trustee's  report,  and  thereby  divesting 
Waters  of  his  real  estate,  and  converting  it,  for  the  purposes  of  this 
suit,  into  personalty,(a)  that  a  sufficiency  of  his  property  had 
been  taken  to  pay  the  debt  due  from  him.  This  debt,  as  to  him, 
was  then  satisfied ;   for  his  property  having  been  disposed  of,  by 

(n)  The  State  use  Rogers  v.  Krebs,  6  H.  &,  J.  31. 


44  HOYE  V.  PENN. 

the  Court;  and,  being  entirely  under  its  control,  he,  the  original 
debtor,  cannot  be  held  bound  as  an  insurer  of  its  sufficiency  or 
safety,  and  liable  for  any  loss  that  has  happened  to  the  fund  which 
has  been  so  taken  into  the  custody  of  the  Court.  For,  it  is  a  general 
rule,  that  where  a  loss  happens  by  the  failure  of  a  trustee  appointed 
by  creditors,  they  must  bear  it ;  but  where  a  loss  happens  from  the 
default  of  a  receiver  or  trustee,  appointed  by  the  Court,  or  from  any 
failure  in  the  direction  of  the  Court  itself,  the  estate  must  bear  it. (6) 
To  seize  any  more  of  Waters^  property,  in  such  a  case,  would  be 
to  make  him  pay  his  debt  over  again. 

It  is  said,  however,  that  there  is  an  unappropriated  surplus  of  the 
proceeds  of  Pernios  property  in  court ;  and  that,  Pe^ni  and  Waters 
being  jointly  liable,  that  surplus  may  be  applied  to  make  good  the 
ultimate  deficiency  in  the  proceeds  of  the  sale  of  Waters^  property. 
But,  according  to  the  decree  of  the  24th  of  March,  1812,  which 
has  been  affirmed  by  the  Court  of  Appeals,  and  is  founded  upon 
the  clearest  principles  of  law  and  equity,  these  two  obligors,  Penn 
and  Waters,  were  held  bound  to  contribute  to  the  satisfaction  of 
this  debt  in  equal  proportions,  so  far  as  such  just  contribution  could 
be  enforced  without  prejudice  to  their  creditors. (c)  And  that 
contribution  having  been  effected,  by  the  sale  of  their  respective 
estates,  without  delay  or  prejudice  to  these  plaintiffs,  was,  as  to 
Penn  and  Waters  respectively,  a  complete  satisfaction  of  the  debt. 
Now,  if  it  would  be  unjust,  as  we  have  seen  it  would  be,  to  take 
any  more  of  Waters^  property  to  make  good  this  deficiency,  it  cannot 
be  at  all  equitable  to  take  Pemi's  property  for  that  purpose ;  since 
Penn  and  Waters,  as  to  this  debt,  being  jointly  liable,  are  as  one 
and  the  same  debtor ;  and  consequently  Penn's  property  cannot  be 
touched  on  any  principle  which  would  not,  in  like  manner,  authorize 
the  taking  of  Waters'*  property. 

The  confirmed  report  of  the  trustee  shews,  that  more  than  enough 
of  Waters^  property  had  been  sold ;  and  consequently  he  is  a  claimant 
to  the  amount  of  the  surplus  stated  to  have  arisen  from  that  sale ; 
and  is,  in  that  respect,  a  creditor  of  the  fund  taken  by  the  Court, 
who  must  be  permitted  to  stand  here  upon  as  high  ground  as  those 
creditors  who  brought  him  here  as  a  defendant ;  and  to  satisfy  whose 
claims  the  Court  had  taken  this,  his  property.  Therefore,  if  there 
should  be  any  deficiency,  in  collecting  the  proceeds  of  the  sale  of 
the  property  of  Waters,  which  has  been  resold,  such  loss  must  be 

(6)  Hutchinson  v.  Lord  Massarene,  2  Ball  &.  Bea.  49;  The  Rendsberg,  6  Rob. 
Adm   Rsp.  156.— (c)  Herbert's  case,  3  Co.  13 ;  Wright  v.  Simpson,  6  Ves.  734. 


HOYE  V.  PENN.  45 

borne  pro  rata  ;  that  is,  by  Waters^  in  proportion  to  his  surplus,  and 
by  his  creditors  in  proportion  to  their  several  established  claims. 

It  has  been  laid  down  as  a  clear  law,  that  when  a  sheriff  seizes 
goods,  by  virtue  of  a  fieri  facias,  to  the  value  of  the  debt,  the 
defendant  is  actually  discharged,  though  they  are  not  sold ;  for  the 
plaintiff  must  depend  upon  his  execution,  and  rely  upon  that ;  and 
he  has  no  further  remedy  against  the  defendant,  but  altogether 
against  the  sheriff;  and  the  defendant  having  lost  his  goods  upon 
an  execution,  which  the  plaintiff  himself  has  chosen,  the  goods  are 
in  the  custody  of  the  law,  and  the  defendant  disch-arged.  Upon 
similar  principles,  it  may  be  regarded  as  a  general  rule  in  equity, 
that  where  the  property  of  a  debtor  has  been  sold,  under  a  decree, 
to  pay  his  debt,  and  the  report  of  the  trustee,  as  finally  ratified, 
shew^s,  that  enough  of  the  debtor's  property  has  been  taken  and 
sold  to  satisfy  such  claim  fully,  the  debt,  as  relates  to  the  debtor,  must 
be  considered  as  satisfied;  and  no  subsequent  failure,  from  any 
cause  whatever,  in  collecting  the  full  amount  of  the  proceeds  of  such 
sale,  can  justify  the  original  creditor  in  again  resorting  to  his  debtor, 
and  making  a  further  seizure,  after  his  property  had  been  thus  taken 
and  sold  to  an  amount  equal  to  the  debt.((^) 

Whereupon  it  is  ordered,  that  the  several  receipts  or  assignments 
of  the  respective  representatives  of  the  late  Charles  Penn,  sen'r, 
be,  and  the  same  are  hereby  allowed  in  favour  of  the  assignees 
claiming  under  them ;  and,  that  the  trustee  apply  the  proceeds  as 
heretofore  directed  by  the  order  of  the  29th  of  Januaiy,  1823;  and 
further,  that  the  petition  of  John  Hoye  and  others  be,  and  the  same 
is  hereby  dismissed,  with  costs. 


From  this  order  there  was  an  appeal,  and  the  order  was  reversed 
by  the  Court  of  Appeals,  at  June  term,  1828. — Hoye  v.  Penn, 
2  H.  &  G.  477. 


(d)  The  King  v.  Hopper,  3  Price,  40;  Wilbraham  v.  Snow,  2  Saund.  47,  n.  I; 
Clerk  V.  Witiiers,  2  Ld.  Raym.  1072 ;  S.  C.  6  Mod.  299 ;  Ex  parte  Minor,  11  Ves.  559 ; 
Beatty  v.  Chapline,  2  H.  &.  J.  7. 


46  HUGHES'  CASE. 

HUGHES'  CASE. 

The  form  and  mode  of  proceeding  in  Chancery,  according  to  the  act  of  Assembly,  to 
obtain  a  division  of  an  intestate's  real  estate  among  his  heirs,  where  the  lands  lie 
in  different  counties. 

Where  an  act  of  Assembly  authorizes  an  object  to  be  attained,  and  the  prescribed 
course  of  attaining  it  is  deficient,  that  of  the  forum  resorted  to  may  be  pursued  for 
the  purpose  of  supplying  such  deficiency.  If  the  deficiency  cannot  be  so  supplied, 
with  propriety  and  effect,  then  the  court  applied  to  can  have  no  jurisdiction ;  and 
if  it  cannot  be  supplied  by  any  other  court,  then  the  act  of  Assembly  must  be  treated 
as  a  nullity,  because  of  there  being  no  tribunal  competent  to  execute  it. 

George  A.  Hughes  and  Christopher  Hughes,  by  their  petition, 
filed  on  the  11th  of  April,  1825,  stated,  that  their  father  had  died 
intestate,  seized  of  lands  lying  in  Baltimore  and  Anne  Arundel 
counties,  which  had  descended  to  the  petitioners  and  his  other 
children,  who  could  not  agree  upon  a  division  thereof;  and  that 
the  intestate  had  left  a  widow.  Whereupon  they  prayed,  that  com- 
missioners might  be  appointed  to  make  partition  of  the  estate,  &c. 

11th  Apnl,  1825. — Bland,  Clmncellor. — This  is  a  petition 
founded  on  the  act  to  direct  descents,(a)  which  declares,  that  where 
the  lands  or  estate  lie  in  different  counties  the  partition  may  be 
made  in  the  mode,  therein  prescribed,  by  this  court.  It  is  the  first 
case  of  the  kind  that  has  been  instituted  here. 

It  may  be  observed  in  general,  that  where  an  act  of  the  General 
Assembly  directs  any  thing  to  be  done,  the  legislature  either  provides 
the  means  to  be  pursued  to  effect  the  object,  or  it  is  partially,  or 
wholly  silent  as  to  the  manner  of  proceeding.  In  the  first  case,  the 
mode  provided  must  necessarily  be  pursued ;  but,  in  the  latter,  the 
legislature  acts  in  part,  or  altogether  upon  the  supposition,  that  the 
enactment  is,  so  far  as  it  goes,  or  entirely,  complete  in  itself;  and,  that 
the  rules  of  the  courts  of  common  law,  or  of  equity  are  sufficient  to 
assure  to  the  citizen  any  right  which  he  may  derive  from  it.  If  the 
prescribed  means  be  such  as  can  only  be  executed  at  common  law,  or 
in  equity,  then  the  one,  or  the  other  of  those  tribunals,  must  be  clothed 
with  exclusive  jurisdiction  accordingly ;  or  the  enactment  may  be 
such  as  to  allow  them  to  have  concurrent  jurisdiction.  But,  if  its 
nature  be  such,  that  the  prescribed  mode  can  be  executed  by  neither ; 
or  the  right  given  be  such,  that,  according  to  their  several  limited 
and  settled  modes  of  proceeding,  neither  of  them  can  grant  proper 
redress,  they  cannot,  in  any  way,  supply  the  deficiency.     Because, 

(a)  1820  ch.  191,  s.  13. 


HUGHES'  CASE>  47 

even  upon  English  authority,  a  court  of  justice  cannot  be  permitted 
in  any  case  to  legislate ;(«)  and  because,  by  the  constitution  of  our 
Republic, (6)  the  three  departments  having  been  directed  to  be  kept 
for  ever  separate,  the  judiciary  has  been  expressly  excluded  from 
every  species  of  legislation ;  and  is  precluded  from  supplying  any 
omissions  of  the  legislature,  however  obvious  or  necessary  it  may 
be  for  attaining  the  object  in  view.  Hence,  it  clearly  follows, 
that  in  all  cases  of  this  kind,  even  where  the  courts  of  common  law 
and  of  equity  have  concurrent  jurisdiction ;  tlie  law  and  course  of 
proceeding  of  the  forum  resorted  to  must  be  pursued. (c) 

The  act  to  direct  descents  gives  to  the  several  heirs  of  an  intes- 
tate a  right  to  have  a  partition  of  his  estate  made  among  them ;  and 
has,  in  part,  prescribed  the  manner  in  which  such  partition  may  be 
obtained ;  and,  consequently,  so  far  this  court  must  act  according 
to  the  prescribed  mode  ;  but,  in  all  other  respects,  it  must  be 
governed  by  its  own  established  course  of  proceeding  in  so  far  as 
it  can  be  modified,  and  adapted  to  the  positive  enactments  of  the 
legislature. 

In  all  cases  of  this  kind,  as  has  been  done  in  this  instance, 
it  is  indispensably  necessary,  that  the  petition  should  state,  with 
sufficient  perspicuity,  where  or  in  what  counties  the  lands,  or  estate 
of  the  intestate  lie ;  the  name  of  his  widow,  if  she  be  then  living ; 
and  the  names  and  description  of  his  heirs,  w^hether  adult  or  infant ; 
and  where  resident,  in  or  out  of  the  State ;  to  the  end,  that,  if  they 
be  inhabitants  of  the  State,  notice  may  be  given  to  them ;  or  if 
not,  that  they  may  be  warned  by  publication  as  allowed  by  the  50th 
section  of  the  act.  The  commission  aw^arded  must,  in  all  cases, 
exactly  recite  the  petition  for  the  government  of  the  commissioners 
in  their  proceedings  ;  and  the  court  will  expect,  in  every  case,  that 
the  petitioner  should,  as  in  this  instance,  nominate  to  it  some 
suitable,  disinterested,  and  respectable  persons  as  commissioners. 
The  form  of  the  commission  to  be  issued  in  this,  and  all  similar 
cases,  shall  be  as  follows. 

•'  The  State  of  Maryland, 
"  To  Joseph  Toumshend,  Henry  Stouffer,  James  Mosher,  Geoi-ge  Decker, 
and  John  Hillen,  of  Baltimore  County,  Greeting : 
"  Whereas  George  Augustus  Hughes  and  Christopher  Hughes,  by  their 
petition  to  the  Chancellor  of  Maryland,  have  set  forth,  that  the  late 

(a)  Weale  v.  West  Middlesex  Wa.  Comp.  1  Jac.  8c  Wal.  371 ;  The  Bank  of  Colum- 
bia i;.  Ross,  4  H.  &  M'H.  4.56.— (6)  Deck.  Rig.  art.  6.— (r)  3  Blac.  Com.  436. 


48  HUGHES'  CASE. 

Christopher  Hughes,  their  father,  died  intestate  and  seized  in  fee  simple 
of  sundry  parcels  of  land  and  real  estate  lying  and  being  in  Baltimore 
county  and  in  Anne  Arundel  county,  leaving  a  widow,  Peggy  Hughes, 
and  six  children ;  that  is  to  say,  the  said  petitioners,  who  are  both  of 
full  age  ;  and  Peggy,  who  has  intermarried  with  Samuel  Moore ;  Louisa 
Jlrmistead,  who  heretofore  intermarried  with  George  Armistead,  since 
deceased ;  Mary,  who  has  intermarried  with  Horatio  G.  Armstrong  ;  and 
Juliana,  who  has  intermanied  with  Charles  M.  Thntston;  to  whom  the  said 
real  estate  has  descended.  And  the  said  petitioners  allege,  that  the  par- 
ties so  entitled  cannot  agree  upon  a  division  thereof;  they  have  therefore 
prayed,  that  partition  of  the  said  estate  may  be  made  among  the  afore- 
said heirs  according  to  their  several  just  proportions,  agreeably  to  the  act 
of  assembly  in  such  case  made  and  provided ;  which  said  prayer  hath 
been  granted  :  and  it  being  suggested  to  the  Chancellor,  that  you  are  dis- 
creet and  sensible  men  within  the  said  county ;  and  the  Chancellor  having 
great  confidence  in  your  prudence  and  integrity,  hath  therefore  assigned, 
commissioned,  and  appointed ;  and  doth  hereby  assign,  commission  and 
appoint  you,  or  a  majority  of  you,  having  first  taken  the  oath  hereto 
annexed,  to  adjudge  and  determine  whether  the  said  estate  will  admit 
of  being  divided  without  loss  or  injury  to  all  the  parties  entitled,  and  to 
ascertain  the  value  of  the  said  estate  in  lawful  money,  taking  into  con- 
sideration any  incumbrances  thereon ;  and  to  ascertain  the  value  of  the 
said  estate  subject  to  the  incumbrances;  and  if  the  said  estate  can,  in 
your  opinion  and  judgment,  or  in  the  opinion  and  judgment  of  a  major- 
ibf  of  you,  be  divided  without  loss  and  injury  to  all  the  parties  entitled, 
then  to  divide  and  make  partition  of  the  same  fairly  and  equally  in  value, 
among  all  the  parties  interested,  according  to  their  several  just  propor- 
tions ;  or  if  the  said  estate  cannot  be  divided  equally  and  fairly  among 
all  the  parties  interested  according  to  their  several  just  proportions, 
then  you,  or  a  majority  of  you,  shall  divide  the  estate  into  as  many  parts 
as  it  is  susceptible  of,  without  loss  and  injury  to  all  the  parties  entitled, 
and  ascertain  the  value  of  each  part  of  such  estate  in  lawful  money, 
subject  to  any  incumbrance  thereon  ;  and  if,  in  your  opinion  and  judg- 
ment, or  in  the  opinion  and  judgment  of  a  majority  of  you,  the  said  estate 
cannot  be  divided  without  loss  or  injury  to  all  the  parties,  then  you,  or 
a  majority  of  you,  shall  make  return  to  our  Court  of  Cliancery  of  your 
judgment,  and  the  reasons  upon  which  the  same  was  formed,  and  the 
real  value  of  the  said  estate  in  lawful  money,  subject  to  the  incumbrance 
if  any  thereon ;  and  if  you,  or  a  majority  of  you,  shall  determine  that  the 
said  estate  can  be  divided  in  either  of  tlie  ways  herein  before  mentioned, 
without  loss  and  injury  to  all  parties,  then  you  shall  cause  the  lands  to 
be  sun'eyed  and.  laid  out  by  the  county  surveyor,  or  such  other  person 
as  you  may  think  qualified,  for  the  several  parties  in  case  the  estate 
consists  of  lands ;  and  if  the  said  estate  shall  be  equally  divided  among 


HUGHES'  CASE.  49 

all  the  parties  interested  according  to  their  several  just  proportions,  then 
you,  or  a  majority  of  you,  shall  allot  to  the  several  parties  their  respec- 
tive shares  of  the  said  land  :  and  in  case  the  said  estate  shall  consist  of 
houses,  you,  or  a  majority  of  you,  shall  make  allotment  and  partition 
among  the  parties.  And  you,  or  a  majority  of  you,  are  hereby  empowered 
and  directed  to  ascertain  and  lay  off  the  widow's  dower  in  and  to  the  lands 
and  tenements  of  the  estate,  before  you  shall  proceed  to  divide  or  value 
the  same  ;  and  j-ou,  or  a  majority  of  you,  shall  make  the  ascertainment 
and  location  of  such  dower  a  part  of  your  return  to  this  commission. 
And  you,  or  a  majority  of  you,  shall  cause  notice  to  be  given  to  all  par- 
ties concerned,  by  advertisement,  set  up  at  the  court  house,  and  in  such 
other  public  places  in  the  said  counties  as  you  may  direct,  at  least  thirty 
days  previous  to  your  proceeding  to  execute  this  commission.  And  you, 
or  a  majority  of  you,  are  appointed  commissioners  to  proceed  in  the 
premises,  according  to  the  directions  of  an  act  of  the  General  Assembly 
of  Maryland,  passed  at  December  session  1820;  chap.  191,  entitled, 
*'  An  act  to  reduce  into  one  system  the  laws  to  direct  descents."  And 
you,  or  a  majority  of  you,  having  made  partition  or  allotment  in  manner 
aforesaid,  shall  make  return  of  your  proceedings  to  our  Court  of  Chancery 
without  delay.  Witness  the  Honourable  Theodorick  Bland,  Esquire, 
ChanceUor,  this  18th  day  of  April,  18-25." 

"  TesY,— Ramsey  Waters,  Reg.  Cur.  Can." 

COMMISSIONERS'  OATH. 

Be  it  remembered,  that  on  this day  of personally  appeared 

Joseph  Townshend,  &c.  before  the  subscriber,  one  of  the  Justices  of  the 
Peace  in  and  for  Baltimore  county,  and  made  oath,  [or  affirmation,]  that 
they  would  well  and  faithfully  perform  the  duties  required  of  them  by  the 
annexed  commission,  and  all  duties  assigned  them  under  the  act  of  Assem- 
bly therein  referred  to  ;  and  that  they  would  proceed  in  the  execution 
and  completion  of  the  said  commission  without  favour,  partiahty,  or  preju- 
dice, and  according  to  the  best  of  their  judgment  and  understanding. 


The  commissioners  made  a  return  of  their  proceedings  and  the 
partition  which  they  had  made  in  pursuance  of  this  commission  ; 
and  an  agreement  in  writing,  signed  by  each  one  of  the  heirs,  pray- 
ing that  the  return  might  be  ratified  and  a  final  decree  passed,  having 
been  filed,  the  case  was  submitted  accordingly. 

21th  Juli/y  1825. — Bland,  Chancellor. — This  case  standing  ready 
for  hearing,  and  having  been  submitted,  the  proceedings  were  read 
and  considered. 

Whereupon  it  is  decreed,  with  the  assent  of  the  parties  in 
writing    filed,    that    the    return    of   the    commissioners    and    the 

7 


50  DEAVER  V.  REYNOLDS. 

partition  by  them  made  be  and  the  same  is  hereby  ratified  and 
confirmed. 

And  it  is  further  decreed,  with  the  assent  aforesaid,  that  Louisa 
Armistead  shall  hold  in  severalty,  and  not  jointly  with  the  said  heirs 
of  the  said  Christopher  Huglies,  deceased,  all  those  lots  of  ground 
which  are  contained  in  the  grand  division  letter  A,  as  described  by 
the  commissioners  in  their  said  return,  and  which  is  composed  of 
the  following  lots,  to  wit :  &c.  &c.  &c. 

The  costs  of  the  suit  to  be  borne  by  the  heirs  in  equal  parts. 


DEAVER  V.  REYNOLDS. 


AVhere  a  person,  who  had  allowed  himself  to  be  reported  by  the  trastee  as  the  highest 
bidder,  without  any  design  to  bafSe  the  proceedings  of  the  Court,  stated,  that  he 
was  unable  to  comply  with  the  terms  of  the  sale,  he  was  discharged  on  pajTnent  of 
costs  only,  without  having  tlie  property  resold  at  his  risk. 

This  bill  was  filed  on  the  29th  July,  1824,  by  James  Denver  and 
Eliza  his  wife,  against  Lewis  Reynolds,  Mien  Reynolds,  and  others, 
the  heirs  of  the  late  Tobias  Reynolds,  to  obtain  a  partition  among 
them  of  the  real  estate  of  which  he  had  died  seized.  The  defend- 
ants answered ;  and  on  the  30th  of  March  1825,  a  decree  was 
passed,  directing  the  estate  to  be  sold  for  the  purpose  of  effecting  a 
division  of  its  value,  as  it  was  incapable  of  a  specific  partition. 
The  trustee  reported,  that  he  had  made  a  sale  as  directed ;  and  that 
Lewis  Reynolds  was  the  purchaser.  Upon  which  an  order  was 
passed,  that  the  sale  should  be  ratified  unless  cause  were  shewn  to 
the  contrary-  on  or  before  the  7th  of  July  1825. 

After  which  the  trustee  reported,  that  the  purchaser  had  neglect- 
ed to  give  bond  and  comply  with  the  terms  of  sale ;  upon  which 
he  submitted  the  matter  to  the  consideration  of  the  Chancellor. 
And  at  the  same  time  Lewis  Reynolds,  the  purchaser,  by  a  note  in 
writing,  stated,  that  it  was  entirely  out  of  his  power  to  comply 
with  the  terms  of  the  sale ;  and  therefore  prayed,  that  it  might  be 
set  aside. 

28^/4  July,  1825. — Bland,  Chancellor. — It  is  not  alleged,  nor  is 
it  shewn,  that  there  has  been  any  design  to  baffle  the  proceedings 
of  the  court,  or  to  obtain  any  undue  advantage  by  this  bidder.  He 
seems  to  have  had  a  fair  intention  to  purchase,  but  has  either  been 


LATIMER  V.  HANSON.  51 

disappointed  in  his  means,  or  has  not  had  the  ability  to  make  the 
purchase,  which  he  had  calculated  upon. (a)  I  shall  not,  therefore, 
order  the  estate  to  be  resold  at  his  risk,  or  charge  him  with  inter- 
est on  the  amount  of  the  purchase  money  as  a  penalty  for  the  dis- 
appointment he  has  occasioned.  Yet,  as  he  has,  by  this  abortive 
attempt  to  purchase,  put  the  case  to  much  expense,  it  is  but  just, 
that  he  alone  should  be  charged  with  it. 

Whereupon  it  is  ordered,  that  the  sale  made  to  Lewis  Reynolds, 
as  reported  by  the  trustee,  be  set  aside ;  that  the  trustee  proceed, 
without  delay,  to  resell  the  estate  as  directed  by  the  decree  ;  that  all 
the  costs  and  expenses  of  this  sale  be  paid  by  Lewis  Reynolds ; 
and  that  the  auditor,  in  stating  an  account  making  a  distribution 
of  the  proceeds  of  sale,  deduct  the  same  from  the  amount  to  w^hich 
Lewis  Reynolds  may  appear  to  be  entitled. 


LATIMER  V.  HANSON. 


Where  a  bill  has  been  filed  for  partition,  creditors  may  come  in  on  the  ground  of  the 
insuiRciency  of  the  personal  estate  of  the  deceased  debtor  whose  real  estate  is  thus 
proposed  to  be  divided. 

A  person  appointed  trustee  is  not  obliged  to  accept  the  ofSce ;  but  if  he  does  so,  he 
is  bound  to  obey  the  orders  of  the  court. 

The  court  may  order  the  proceeds  of  a  sale  in  the  hands  of  a  trustee  to  be  invested 
by  him,  so  as  to  be  made  productive  pending  the  litigation ;  and  if  the  trustee 
fails  or  refuses  to  make  the  investment  accordingly,  he  may  be  ordered  to  bring  in 
the  whole  amount,  with  compound  interest,  from  the  date  of  the  order  directing  the 
investment. 

The  bill,  filed  on  the  31st  May  1816,  states,  that  the  late  Charles 
Wallace,  by  his  last  will,  devised  his  real  and  personal  estate  to 
Leonard  Sellman  and  Charles  W.  Hanson,  to  be  by  them,  after 
the  payment  of  his  debts  and  certain  legacies,  diA-ided  among  the 
plaintiffs  and  defendants  ;  that  Sellman  is  dead ;  that  Hanson,  the 
surviving  trustee,  holds  the  property  and  refuses  to  execute  the  trust ; 
and  that  a  partition  of  the  real  estate  cannot  be  made  without  loss. 
Whereupon  they  prayed  a  sale  and  division  of  the  proceeds.  No 
opposition  having  been  made  to  this  prayer,  a  decree  was  passed 
the  1st  of  March,  1817,  directing  the  real  estate  to  be  sold,  and 
appointing  JVicholas  Brewer  trustee  for  that  purpose,  who  made  sale 
thereof  accordingly. 

(a)  Hodder  v.  Ruffin,  1  Ves.  &  B.  54 J. 


52  LATIMER  V.  HANSON. 

On  the  9th  of  August  1819,  Sarah  11.  Smith  filed  a  petition  in 
behalf  of  herself  and  the  other  creditors  of  the  late  Charles  Wallace, 
stating,  that  in  April  1810,  she  had  obtained  a  judgment  against 
him  in  his  lifetime  for  ^£450  4s.  Id. ;  that  she  is  infonned  that  several 
judgments  have  been  obtained  against  his  executor,  upon  which 
executions  have  issued,  which  have  been  returned  nulla  bona  ;  that 
she  cannot  obtain  payment  from  the  personalty ;  and  therefore 
prays  to  be  paid  out  of  the  proceeds  of  the  sale  of  the  real -estate 
in  the  hands  of  the  trustee ;  and  that  notice  be  given  to  the  heirs, 
devisees,  and  creditors. 

2Ath  July,  1820. — Kilty,  Chancellor. — On  the  petition  of  Sarah 
H.  Smith,  the  auditor  is  directed  to  state  an  account  of  the  claims 
against  the  estate  of  Charles  Wallace  if  the  proceedings  are  in  a 
state  for  that  purpose. 

Immediately  after  which  the  case  was  again  brought  before  the 
court  for  further  consideration  on  the  same  petition. 

29ih  July,  1820. — Kilty,  Chancellor. — On  the  petition  of  Sarah 
H.  Smith,  claiming  to  be  a  creditor,  and  praying  to  be  paid  out  of 
the  proceeds  of  the  said  estate,  on  the  ground,  that  the  personal 
estate  is  insufficient,  and  that  notice  should  be  given  to  the  heirs 
and  devisees,  and  to  the  creditors;  I  have  examined  the  proceed- 
ings, and  find  some  difficulty  in  making  the  order  at  present.  It 
has  become  the  established  practice  to  admit  and  determine  on 
claims  to  the  proceeds  of  sale  on  decrees  for  the  purpose  of  divid- 
ing them ;  but  this  being  done  to  remedy  the  neglect  or  delay  of 
creditors  who  might  have  filed  their  original  bill,  it  is  incumbent  on 
them  to  shew  who  are  at  present  the  heirs  and  devisees,  their  resi- 
dence and  ages,  and  to  have  order  for  publication  against  those 
out  of  the  State. 


On  the  31st  December  1821,  some  of  the  devisees  filed  their 
petition,  in  which  they  stated,  that  the  trustee,  Breioer,  had  made 
sale  of  the  real  estate,  and  had  the  money  then  in  his  hands ;  and 
stated  further,  that  there  are  several  disputes  both  at  law  and  in 
equity,  which  have  prevented  a  settlement  of  the  personal  estate  of 
the  said  Charles  Wallace,  and  it  may  remain  for  a  long  time  doubt- 
ful whether  the  creditors  or  the  representatives  will  be  entitled 
to  the  proceeds  of  the  said  sales.  In  the  mean  time  the  debts  are 
increased  yearly  by  accruing  interest,  and  the  funds  lie  idle  in  the 
hands  of  the  trustee.     Part  of  the  money  arising  from  said  sales 


LATIMER  V.  HANSON.  53 

have  now  been  upwards  of  three  years  in  the  trustee's  hands.  Upon 
which  they  prayed,  that  a  trustee  might  be  appointed  to  receive  the 
money  from  A^ic/wlas  Brewer,  and  who  might  be  directed  to  invest  it 
in  some  pubhc  stocks,  and  the  dividends  thereof  also  to  be  invested. 
2lst  December,  1821. — Johnson,  Chancellor. — On  the  afore- 
going petition,  it  is  ordered,  that  the  trustee,  JVicholas  Brewer,  invest 
the  money  that  he  has,  or  shall  receive  in  consequence  of  the 
sales  made  by  him,  in  the  stock  of  the  Fanners  Bank  of  Marjland, 
or  in  the  stock  of  the  Government  of  the  United  States,  as  he  shall 
find  most  to  the  interest  of  those  interested,  and  the  dividends 
arising  from  such  investment,  in  like  manner  to  be  invested.  An 
annual  report  of  the  trustee  is  directed  to  be  made  to  the  court 
stating  the  amount  invested,  and  the  dividends  arising  therefrom,  as 
well  as  the  appropriations  he  shall  have  made  of  the  dividends. 


On  the  first  of  April,  1824,  some  of  the  devisees  filed  a  petition, 
praying  that  the  trustee  might  be  ordered  to  account  for  stock  pur- 
chased ;  or,  if  none  had  been  purchased,  that  he  might  be  charged 
with  interest,  and  that  another  account  might  be  stated  making  a 
distribution  without  charging  him  interest.  Upon  which  it  was 
ordered,  that  the  accounts  be  stated  by  the  auditor  as  prayed. 

11th  March,  1825. — Bland,  Chancellor. — Ordered,  that  JVicho- 
las Brewer,  trustee,  on  or  before  the  second  day  of  April  next,  bring 
into  court  the  money  in  his  hands  arising  from  the  sales  of  property 
sold  by  him,  and  the  securities  which  remain  uncollected,  as  also 
interest  from  the  1st  January  1822,  on  the  amount  acknowledged  by 
his  report  to  have  been  received,  or  shew  cause  to  the  contrary : 
provided  a  copy  of  this  order  be  served  on  the  said  trustee  on  or 
before  the  twentieth  instant. 


The  auditor,  in  his  report  of  the  2d  of  July,  1825,  says,  "  In 
obedience  to  the  court's  order  of  24th  July,  1820,  he  has  made,  of 
the  claims  exhibited  against  the  estate  of  the  said  Charles  Wallace, 
deceased,  the  statements  marked  A.  A.  as  of  the  day  of  the  trustee's 
last  sales,  and  they  amount,  as  appears  for  debts,  to  $8897  12,  and 
for  legacies  to  $2900  21 .  The  claims  for  debts  are  not  established  as 
the  act  of  '98,  and  the  practice  of  the  court  require.  Nor  have  such 
proceedings  thereon  been  taken  as  to  enable  the  Chancellor  regularly 
to  allow  them,  if  they  were  sufficiently  vouched.  Yet,  one  of  them 
(No.  1.)  being  a  judgment  against  the  deceased  in  his  lifetime,  and  of 
course  a  lien  on  the  estate,  he  thinks  it  should,  at  least,  be  entertained 


54  LATIMER  V.  HANSON. 

until  the  right  of  the  claimant  shall,  on  notice,  have  been  decided. 
In  execution  of  the  court's  order  passed  upon  the  petition  of  Wallace^ s 
devisees,  filed  1st  April  1824,  he  has  stated  the  trustee's  account  with 
the  estate,  marked  B.,  applying  the  proceeds  thereof  to  the  payment  of 
his  allowances  for  commission  and  expenses,  and  of  the  costs  in  this 
court,  and  distributing  the  balance  among  the  deceased's  residuary- 
devisees,  assuming  thus,  that  the  personal  estate  is  sufficient  for  the 
payment  of  debts  and  legacies,  nothing  being  shewn  to  the  contrary. 
And  he  has  stated  too,  the  trustee's  account  C.  for  so  much  of  the  pro- 
ceeds as  he  has  received ;  charging  him  therewith,  and  at  his  request, 
with  the  amount  also  of  sales  made  to  his  son  JV.  Brewer,  junr.  then 
crediting  his  said  allowances  for  commission,  &c.  and  the  sum  he 
paid  into  court  on  the  6th  of  April  last ;  and  so  shewing  a  balance 
of  $673  77  cents  in  his  hands  yet  to  be  accounted  for.  At  the  foot 
of  that  account  he  has  charged  the  trustee  with  interest  also,  from 
1st  January  1822,  as  directed ;  and  this  makes  the  balance  in  his 
hands  to  be  $1393  22,  bearing  further  interest  from  6th  April  1825. 

On  the  14th  of  July  1825,  JYicholas  Brewer,  the  trustee,  filed  his 
report,  on  oath,  shewing  cause  in  obedience  to  the  order  of  the  17th 
of  March  1825,  in  which  report  he  says,  "  That  by  the  decree, 
under  which  he  acted,  it  became  his  duty  to  sell  the  property  decreed 
to  be  sold,  to  take  bond  with  sufficient  sureties  for  the  purchase 
money,  to  bring  the  bonds  so  taken,  and  the  purchase  money  when 
received  into  court,  or  to  apply  it  under  the  Chancellor's  direction 
to  those  entitled  to  receive  it,  and  he  humbly  conceives,  that  the 
Chancellor  had  no  power  to  order  him  to  invest  the  money  when 
received  and  the  accruing  dividends  compelling  him  to  undergo 
labour  and  encounter  risks  not  contemplated  by  his  original  appoint- 
ment, nor  intended  to  be  compensated  by  his  commission,  nor  does 
he  believe,  that  the  Chancellor  had  any  power  to  order  the  invest- 
ment of  the  proceeds  of  the  sale  of  the  real  estate  at  all. 

"  Notwithstanding,  the  trustee  further  states,  that  in  obedience  to 
the  said  order  he  did  endeavour  to  procure  stock  of  the  Farmers 
Bank  of  Maryland,  but  was  not  successful ;  and  the  stock  of  the 
Government  of  the  United  States  was,  at  the  date  of  the  order,  and 
ever  since  has  been,  above  par,  and  would  not  have  secured  to  the 
claimants  six  per  cent,  interest  on  their  claims,  which  appeared  to 
be  the  object  of  the  petitioners.  And  the  trustee,  residing  in  Anna- 
polis, could  not  have  obtained  it,  even  at  the  then  value,  without  the 
employment  of  brokers,  or  other  agents,  at  the  expense  of  commission 
to  them,  and  involving  risk  to  himself  by  their  possible  infidelity. 


LATIMER  I'.  HANSON.  55 

"  The  trustee  further  represents,  that  he  has  made  no  interest  from 
the  funds  in  his  hands,  nor  derived  any  pecuniary  advantage  from 
them,  but  has  always  been  ready  to  bring  them  into  court  when 
required  by  the  Chancellor  to  do  so,  and  should  have  brought  the 
whole  into  court  under  the  Chancellor's  order  of  the  17th  March  last, 
but  that  the  auditor's  statement,  ascertaining  the  exact  amount  to  be 
brought  in,  had  not  been  made,  and  he  is  ready  to  bring  in  the 
residue. 

"  The  trustee  further  states,  that  the  only  dispute,  that  he  knows 
of,  which  rendered  it  doubtful  whether  the  heirs  or  devisees  of  said 
Wallace  or  his  creditors  should  receive  the  said  funds,  was  a  suit 
in  this  court  by  Clmrles  W.  Hanson  executor  of  Wallace,  against 
John  Murray,  executor  of  John  Muir,  to  which  the  trustee  refers,  in 
which  the  auditor's  report  was  made  on  the  4th  of  July  1821,  and 
was  understood  to  be  acquiesced  in,  and  the  decree  passed  on  the 
23d  of  February  1824 ;  and  which  case  the  trustee  was  in  daily 
expectation  of  being  decided  a  considerable  time  before ;  and  he 
believes  that  was  the  suit  which  induced  the  petitioners  to  require 
the  investment. 

"  The  tmstee  further  states,  that  not  having  succeeded  in  his  en- 
deavours to  invest  the  said  funds,  and  the  petitioners  and  their  coun- 
sel being  acquainted  with  the  progress  of  the  said  suit  of  Hanson 
V.  Murray,  and  often  attending  the  Chancery  Court,  and  not  hav- 
ing called  upon  him  to  report,  he  had  everj-  reason  to  believe,  that 
they  were  satisfied,  that  the  funds  should  remain  as  they  were.  The 
trustee  further  states,  that  even  if  he  were  chargeable  with  interest 
in  this  case  it  would  be  going  a  great  length  to  charge  him  from 
the  moment  the  order  to  invest  was  made,  which  the  auditor,  at 
the  instance  of  the  petitioner's  solicitor,  has  done." 

On  the  18th  of  August  1825,  Sarah  H.  Smith,  with  James  Smith 
and  Edward  T.  Bond,  filed  an  amended  petition,  giving  a  more 
particular  account  of  the  nature  of  the  claim  and  judgment  mention- 
ed in  her  petition  of  the  9th  of  August  1819,  and  stating  that  she 
had  assigned  it  to  the  two  other  petitioners ;  that  the  personal 
estate  of  the  late  Charles  Wallace  was  totally  insufficient  to  pay  his 
debts ;  and  praying  that  their  claim  might  be  paid  out  of  the  pro- 
ceeds of  the  sale  of  his  real  estate  now  in  this  court ;  and  that 
notice  might  be  given  to  the  heirs,  devisees,  and  legatees.  To 
this  petition  Charles  W.  Hanson,  one  of  the  devisees,  filed  his 
answer,  on  the  17th  of  November  1825,  in  which  he  says,  that  he 
does  not  know  of  or  admit  the  said  judgment,  or  the  correctness 


56  LATIMER  I'.  HANSON. 

thereof,  or  that  the  same  is  justly  chargeable  on  the  funds  deposited 
in  this  court.  And  he  also  pleads,  and  relies  upon,  the  act  of  limi- 
tations of  1715,  ch.  23,  s.  7,  as  a  bar  to  the  judgment. 

29th  Augustj  1825. — Bland,  Chancellor. — The  trustee  having 
made  a  further  report  on  the  14th  of  July  last,  shewing  cause  in 
obedience  to  the  order  of  the  17th  of  March  last,  the  parties  were 
heard  by  their  counsel,  and  the  proceedings  and  proofs  in  relation 
thereto  were  read  and  considered. 

It  is  conceived  there  can  be  no  doubt,  that  this  court  has  the 
power  to  make  such  an  order  as  that  of  the  31st  December  1821 ; 
and,  under  the  then  circumstances  of  this  case,  its  propriety  was 
evident,  (a)  A  person  who  is  appointed  a  trustee  by  this  court  is 
not  bound  to  accept  the  trust ;  or  to  continue  in  the  office  longer 
than  he  chooses ;  but,  so  long  as  he  does  consent  to  act  in  that 
capacity,  he  is  bound  implicitly  to  obey  the  orders  of  the  court.  In 
this  case  the  trustee  might  have  refused  to  take  upon  himself  the 
risk,  and  trouble  of  executing  the  order  of  the  31st  December  1821 ; 
but,  if  he  thought  proper  to  refuse,  he  was  bound  immediately  to 
apprise  the  court  of  his  determination,  and  to  bring  in  those  proceeds, 
then  in  his  hands,  w^hich  the  court  had  told  him  should  remain  no 
longer  idle,  but  be  made  productive  in  the  manner  pointed  out ;  and, 
not  having  done  so,  he  is  clearly  chargeable  with  interest. 

Whereupon  it  is  Ordered,  that  JYicholas  Brewer,  the  said  trustee, 
forthwith  bring  into  this  court  the  sum  of  $1393  22,  as  stated  by 
the  account  marked  C.  as  part  of  the  auditor's  report  returned  on 
the.  6th  of  July  last,  together  with  interest  on  the  said  sum  of  money 
from  the  6th  day  of  April  last. 


Some  time  after  which,  the  case  was  again  brought  before  the 
court,  by  a  motion  of  the  solicitor  of  the  representatives  of  the 
late  Charles  Wallace,  the  petition  of  Sarah  H.  Smith,  and  others, 
filed  on  the  18th  August,  1825,  having  been  dismissed. 

30^/i  March,  1826. — Bland,  Chancellor. — Ordered,  that  the 
auditor's  statement  of  the  2d  July,  1825,  be  ratified  and  confirmed  ; 
and  that  the  trustee  apply  the  proceeds  accordingly,  with  a  due  pro- 
portion of  interest,  that  has  been  or  may  be  received,  towards  the 
payment  of  such  of  the  said  claims  as  may  remain  due  and  unpaid 
after  the  payment  of  the  sum  now  in  bank ;  for  the  payment  of 

(a)  Sprino;  v.  The  South  Caro.  In.  Comp.  6  Wheat.  519 ;  1  Harr.  Pra.  Chan.  256 ; 
2  Fowl.  Exch.  Pra.  287. 


STRIKE'S  CASE.  57 

which  to  llie  said  claimant's  soHcitor,  the  register  is  hereby  directed 
to  draw  a  check. 


The  trustee,  Brewery  appealed  from  the  order  of  the  29th  of 
August,  1825;  and  under  the  name  of  the  case  o(  JYicholas  Brewer ^ 
vs.  Charles  W.  Hanson,  and  others,  on  the  2d  of  July,  1828,  the 
order  was  affirmed. 


STRIKE'S  CASE. 

On  a  bill  by  a  creditor,  on  its  being  shewn,  that  certain  conveyances,  by  the  debtor 
defendant  to  the  other  defendant,  were  executed  for  the  purpose  of  delrauding  the 
creditors  of  the  debtor  defendant,  and  without  bona  fide  consideration  ;  they  were 
by  decree  declared  to  be  void,  as  against  the  complainant,  and  the  property  ordered 
to  be  sold. 

It  was  held,  that,  by  such  a  decree,  the  plaintiiT's  claim  must  be  taken  to  have  been 
establislied  ;  that  the  property  directed  to  be  sold  was  to  be  dealt  with  in  that  suit 
as  if  those  annulled  deeds  had  never  existed  ;  that  the  proceeds  of  sale  must  be 
brought  into  court ;  and  that  a  reservation  of  "  all  equities  as  to  the  distribution  of 
the  proceeds  of  sale,  are  reserved  by  the  court  for  hearing,  on  the  trustee's  report, 
on  bringing  into  court  the  money  or  securities  aiising  on  the  sale,"  cannot  be  so 
construed  as  to  abnegate  any  matter  which  had  been  thus  decided.  But,  it  was 
held  to  be  proper  matter  of  further  direction,  under  such  a  decree,  in  the  first 
place,  that  the  legal  interest  on  the  plaintiff's  debt  was  to  be  computed  and  allowed ; 
secondly,  that  an  account  was  to  be  taken  of  the  rents  and  profits  of  the  property 
sold ;  thirdly,  that  the  claim  for  meliorations  and  improvements  was  to  be  consid- 
ered and  determined ;  and  lastly,  where  other  creditors  were  permitted  to  come  in, 
that  their  respective  claims  were  to  be  adjusted,  allowed,  or  rejected. 

To  what  extent  mesne  profits  may  be  recovered  at  common  law,  or  in  equity.  A 
bona  fide  holder,  without  notice  of  any  defect  in  his  title,  may  be  allowed  for 
improvements ;  but  a  fraudulent  holder,  or  a  mala  fide  meddler,  can  have  no  such 
allowance  made  to  him.  The  allowance  for  improvements,  where  it  can  be  made, 
may  be  set  off  eigainst  the  claim  for  rents  and  profits. 

It  is  not  necessar}',  that  the  bill  should  expressly  state,  that  the  suit  has  been  insti- 
tuted as  well  for  the  benefit  ofother  creditors  as  of  the  plaintiff,  to  have  it  considered 
as  a  creditors'  suit.  It  is  enough,  that  the  case  is,  in  its  nature,  a  creditors'  suit. 
The  mode  in  which  other  creditors  are  called,  and  cdlo wed  to  come  in ;  and  the  manner 
of  authenticating  their  claims.  Against  such  claims  the  statute  of  limitations  may 
be  relied  on  by  any  other  creditor  as  well  as  by  the  plainti/i",  or  a  defendant. 

A  creditor  can  in  no  case  be  suffered  to  split  up  his  claim  so  as  to  multiply  suits  ;  nor 
can  he,  after  the  decree,  be  allowed  to  bring  in  any  new  and  additional  claim. 

All  objections  to  the  testimony  are  open,  and  may  be  made  at  the  final  hearing. 

Agreements  between  solicitors  and  suitors,  relative  to  professional  services,  must  be 
enibrced  like  other  contracts ;  and  cannot  be  introduced  into  and  settled  as  a  part 
of  the  case. 

No  order  or  decree  of  a  County  Court  can,  aflor  the  case  lias  been  removed,  be 
altered  or  reversed  by  tlie  Court  of  Chancery. 

This  bill  v.-as  filed,  in  Baltimore  County  Court,  on  the  25th  day 
of  February,  1817,  by  William  McDonaldy  against  John  Rogers  and 

8 


58  STRIKE'S  CASE. 

JYicholas  Strike  ;  and,  on  the  21st  of  May,  1819,  the  bill  was  so 
amended  by  consent,  as  to  allow  Samuel  McDonald  also  to  come 
in  as  a  plaintiff;  and,  that  the  claim  should  be  made  as  due  to 
them  as  partners,  under  the  firm  of  McDonald  §'  Son. 

It  is  stated  in  the  bill,  as  thus  amended,  that  the  plaintiffs  are 
and  have  been  some  time  past  partners  in  trade,  under  the  firm  of 
McDonald  ^'  Son ;  that,  some  time  previous  to  the  year  1811,  a 
partnership  had  been  formed  and  carried  on,  between  the  defendant 
Rogers  and  a  certain  Robert  Henderson,  under  the  firm  of  Hender- 
son 8f  Rogers,  who  as  such  contracted  considerable  debts ;  and, 
among  others,  that  the  firm  of  Henderson  §*  Rogers  became,  and 
are  now  indebted  to  the  plaintiffs,  as  the  firm  of  McDonald  ^ 
Son,  to  the  amount  of  about  six  thousand  dollars  ;  that  Henderson 
Sf  Rogers,  becoming  embarrassed  in  their  affairs,  Rogers,  for  the 
purpose  of  preventing  his  private  property  from  being  made  respon- 
sible for  the  debts  of  the  firm,  on  the  16th  of  January,  1811,  by 
two  separate  deeds  of  that  date,  assigned  two  lots  of  ground  in 
the  city  of  Baltimore,  which  he  held  as  chattels  real,  subject  to  a 
ground  rent,  to  the  other  defendant  JYicholas  Strike.  These  t\\^ 
deeds  are  exhibited  as  parts  of  the  bill ;  the  one  is  expressed  to  be 
in  consideration  of  the  sum  of  five  hundred  dollars  for  one  of  the 
lots  ;  and,  in  the  other,  for  the  other  lot,  it  is  said  to  be  in  consider- 
ation of  the  sum  of  nineteen  hundred  dollars.  In  other  respects, 
they  are  in  the  usual  form  of  such  instruments  of  assignment  of 
leasehold  property. 

It  is  further  stated  and  averred  in  the  bill,  that  the  plaintiffs  have 
every  reason  to  believe,  that  there  was  no  bona  fide  sale  of  those 
lots  firom  Rogers  to  Strike ;  that  no  consideration  passed  between 
them ;  that  if  Strike  paid  Rogers  any  money  it  was  subsequently, 
and  by  way  of  loan  on  the  security  of  those  deeds  ;  and  they  were 
understood  by  the  parties  to  be  expressly  to  avoid  the  payment  of 
the  creditors  of  Rogers,  or  of  Henderson  ^~  Rogers.  And,  as  evi- 
dence of  this  alleged  fraud,  the  plaintiffs  state,  that  a  considerable 
part  of  the  money  paid  by  Strike  to  Rogers,  was  expended  by 
Strike  on  one  of  the  lots,  after  the  execution  of  the  deeds,  and 
charged  to  Rogers  as  a  part  of  the  purchase  money ;  that  another* 
portion  of  the  pretended  purchase  money  was  expended  by  Rogers 
in  erecting  a  furnace,  and  other  permanent  buildings  on  the  other 
lot ;  that  another  j)art  of  the  alleged  purchase  money  was  a  sum 
paid  by  Strike  to  Jacob  Small,  long  after  the  execution  of  those 
deeds,  and  even  after  tlie  application  of  Rogers  for  the  benefit  of 


STRIKE'S  CASE.  59 

the  insolvent  laws,  and  he,  Strike,  had  been  appointed  the  trustee 
of  Rogers  ;  that  Rogers,  during  two  years  after  the  date  of  those 
deeds,  continued  to  receive  the  rents,  and  to  pay  the  ground-rents 
and  taxes  of  those  lots ;  that  Strike,  since  the  execution  of  the 
deeds,  has  often  promised  Rogers  to  reconvey  the  lots  on  the  repay- 
ment of  the  money  paid  by  him ;  and  that,  in  October  1812,  the 
defendant,  Rogers,  applied  to  Baltimore  County  Court  for  the  benefit 
of  the  insolvent  laws,  on  which  occasion  the  parties  procured  the 
defendant.  Strike,  to  be  named  as  his  trustee,  the  better  to  conceal 
those  fraudulent  assignments. 

Upon  which  the  bill  prays,  that  those  deeds  of  assignment  may 
be  declared  null  and  void ;  that  the  lots  may  be  sold  for  the  benefit 
of  the  creditors  of  Rogers,  and  of  Henderson  Sf  Rogers ;  that 
Strike  may  be  compelled  to  account  for  the  rents  and  profits  of  the 
lots  from  the  date  of  the  deeds  ;  and  that  the  plaintiffs  may  have  a 
suhpcena  against  Rogers  and  Strike  to  answer,  &c.  But  there  is 
no  prayer  for  general  relief. 

This  biU  propounds  as  an  interrogatory  to  be  answered  by  the 
defendants,  "  whether,  at  the  period  of  executing  the  said  convey- 
ances, the  said  Henderson  ^  Rogers  had  not  actually  stopped 
payment  as  a  conmaercial  house ;  and  whether  certain  property  of 
theirs  had  not  been  seized  by  certain  persons  alleging  themselves 
creditors  ?"  But  it  is  not  alleged,  that  Robert  Henderson,  the  part- 
ner of  Rogers,  was  dead  or  insolvent ;  nor  is  it  distinctly  averred, 
that  the  partnership  is  actually  insolvent ;  nor  is  Henderson  made 
a  party  to  this  suit. 

The  defendant,  JVicholns  Strike,  on  the  29th  of  NoA-ember  1817, 
put  in  his  answer  to  this  bill,  in  which  he  says,  that  he  knows 
nothing  of  any  debt  being  due  from  Henderson  Sj"  Rogers  to  the 
plaintiffs  ;  that  the  deeds  of  assignment  were  made  by  Rogers  to 
him  bona  fide  ;  the  full  consideration  monpy,  as  set  forth  in  them, 
having  been  paid  by  him  to  Rogers  ;  and  they  were  not  executed 
to  him  to  cover  any  loan  of  money  due  by  Hendersoji  §•  Rogers, 
or  either  of  them  ;  nor  were  those  lots  conveyed  to  him  in  trust,  or 
by  way  of  mortgage  or  security,  or  to  evade  the  claims  of  the  cre- 
ditors of  Henderson  §'  Rogers,  or  of  either  of  them ;  that  Hender- 
son Sf  Rogers,  or  either  of  them,  were  not  indebted  to  him  previous 
to  the  execution  of  those  deeds  ;  that  he  purchased  those  lots 
absolutely,  for  his  (jwn  use,  and  paid  for  them  out  of  his  own 
moneys  ;  that  after  he  made  the  purchase,  he  improved  one  of  them, 
by  erecting  additional  buildings  thereon,  at  his  own  expense,  for 


60  STRIKE'S  CASE. 

which  he  never  did  charge  Rogers;  that  after  he  had  obtained 
possession  of  the  lots,  he  leased  one  of  them  for  a  term  of  years ; 
and  the  tenants,  not  Rogers,  erected  on  it  a  furnace  which  is  of  no 
use  to  him,  Stnke,  and  which  the  tenants  have  a  right  to  remove ; 
that  after  he  purchased,  Rogers  never  received  the  rents,  nor  paid 
the  ground  rents  and  taxes  with  his.  Strikers,  consent ;  that  he 
never  promised  Rogers  to  reconvey  the  property  to  him  on  his 
repaying  the  purchase  money;  that  he  paid  the  whole  purchase 
money  to  Rogers,  and  never  paid  any  part  of  it  to  Jacob  Small; 
that  Rogers  continued  to  occupy  one  of  the  lots  after  the  execution 
of  the  deeds;  and  on  his  failing  to  pay  the  rent,  he.  Strike, 
distrained  his  property  for  the  rent  in  arrear,  and  thus  obtained 
payment;  and  finally,  that  he  was  appointed  trustee  under  the 
insolvent  laws  for  Rogers ;  but  never,  as  such,  received  any  of  his 
property. 

Upon  this  answer  the  defendant.  Strike,  rested  his  defence  ;  he 
never  asked  or  obtained  leave  to  put  in  any  other  answer ;  nor  did 
he  in  fact  ever  put  upon  file  any  paper  purporting  to  be  a  further 
answer  to  this  bill. 

On  the  30th  of  March,  1818,  the  defendant,  John  Rogers,  filed 
his  answer,  in  which  he  states,  that  he  entered  into  a  partnership 
with  Robert  Henderson  about  the  year  1807  or  1808,  which  con- 
tinued until  the  year  1811,  when  they  failed;  that  he  owes  the 
plaintiffs,  after  deducting  a  small  payment  made  to  them,  nearly 
six  thousand  dollars ;  that  a  few  days  after  the  failure  of  the  firm 
of  Henderson  &,'  Rogers,  he  executed  the  deeds  exhibited  as  parts 
of  the  bill,  to  Strike,  in  order  to  secure  the  property  therein  men- 
tioned for  the  benefit  of  the  creditors  of  Henderson  ^'  Rogers,  and 
of  his  own  creditors,  so  as  to  save  it  from  those  who  were  the  cre- 
ditors of  Henderson  before  the  partnership,  and  also  in  trust  to 
preserve  the  surplus  for  himself  and  family ;  that  this  was  the 
understanding  and  agreement  between  him  and  Strike,  who  did 
not  pay,  or  agree  to  pay  any  part  of  the  money  which  was  the 
nominal  consideration  of  those  deeds;  that  those  deeds  were 
entirely  voluntary,  and  were  not  intended  to  operate  as  a  sale,  or 
to  become  such  in  any  event,  but  were  merely  to  remain  as  a  trust ; 
for  the  property  thus  conveyed  was  worth  at  that  time,  much  more 
than  the  consideration  money  expressed  in  the  deeds,  and  he  had 
been  offered  four  thousand  dollars  for  it  by  these  plaintiffs ;  that  at 
the  time  he  executed  those  deeds,  neither  he,  nor  the  firm  of  Hen- 
derson ^  Rogers,  owed  any  thing  to  Strike,  nor  were  those  convey- 


STRIKE'S  CASE.  61 

ances  made  in  contemplation  of  future  advances  of  money  from 
Strike,  although  he  afterwards  received  such  advances  from  him : 
that  in  October  1812,  he  applied  for  the  benefit  of  the  insolvent 
laws,  and  obtained  a  release  of  his  person,  and  Strike  was  appointed 
his  trustee,  as  being  already  in  possession  of  the  principal  part  of 
his  property,  but  he  has  not  since  applied  for  or  obtained  a  final 
discharge ;  that  he  himself  continued  to  occupy  one  of  the  lots, 
on  which  there  was  a  good  dwellinghouse,  about  eighteen  months 
after  the  date  of  the  deeds,  without  any  agreement,  or  even  sug- 
gestion, on  the  part  of  Strike,  of  his  being  under  any  obligation 
to  pay  rent  for  it ;  that  the  other  lot,  on  which  there  w^as  a  small 
dwellinghouse,  was  rented,  and  he  received  the  rent  for  his  own 
use  for  more  than  eighteen  months,  after  the  date  of  the  deeds, 
w'ithout  any  molestation  from  Strike  ;  that  he,  this  defendant,  con- 
stantly paid  the  ground-rent,  taxes,  and  all  other  dues,  incident  to 
the  ownership  of  those  lots,  during  his  residence  in  one  of  them, 
and  for  a  long  time  afterwards  ;  that  during  that  period  he  borrowed 
of  Strike,  from  time  to  time,  about  seventeen  hundred  dollars,  and 
laid  it  out  in  erecting  a  furnace  on  one  of  the  lots  which  he  car- 
ried on  about  two  years  and  a  half  in  conjunction  with  McArdle  ^ 
Coulson,  to  whom  Strike  granted  a  lease  of  it  for  ten  years,  reserv- 
ing rent ;  that  by  the  persuasion  of  Strike,  he  gave  up  to  him  the 
lot  on  which  he  resided,  and  removed  to  another  house  nearer  and 
more  convenient  to  the  furnace;  that  before  he  left  his  house, 
being  much  embarrassed  in  his  affairs,  on  the  persuasion  of  Strike, 
he  consented  to  a  colourable  distress  arid  sale  of  his  effects  for 
rent ;  but  that  he  continued  to  hold  possession  of  the  property, 
which  he  used,  and  afterwards  sold  as  his  own,  without  any  claim 
being  made  by  Strike ;  that  about  eighteen  months  after  Sttike  had 
taken  possession  of  the  lot  so  delivered  to  him,  he  made  some 
improvements  on  it,  an  account  of  the  expenses  of  which,  as 
charged  to  this  defendant,  together  with  the  sums  advanced  for 
erecting  the  furnace,  and  some  other  small  sums,  amounting  to 
about  three  thousand  dollars.  Strike  shewed  to  this  defendant,  and 
assured  him,  as  he  had  often  done  on  other  occasions,  that  on  the 
payment  of  the  amount,  the  property  should  be  reconveyed ;  that 
this  defendant  afterwards  tendered  to  Strike  the  whole  amount,  so 
claimed  by  him,  and  demanded  a  reconveyance  of  the  property ; 
but  Strike  refused  to  comply.  And  finally,  this  defendant  consents, 
that  the  property  be  sold  and  the  })roceeds  applied,  under  the  direc- 


(52  STRIKE'S  CASE. 

tion  of  the  court,  to  the  payment  of  his  just  debts,  reserving  the 
surplus  to  him  and  his  family,  &c.  ' 

The  plaintiffs  having  put  in  a  general  replication  to  those  answers, 
a  commission  was  issued  to  Carlisle  in  Pennsylvania,  under  which 
the  deposition  of  one  witness  was  taken,  returned,  and  filed  on  the 
23d  of  March  1819.  Another  commission  w^as  issued  to  take 
testimony  in  the  city  of  Baltimore,  under  which  the  depositions  of 
thirty-six  witnesses  were  taken  ;  and  among  that  number  the  depo- 
sition of  the  defendant  Rogers  was  taken,  under  a  special  order  of 
the  court,  subject  to  all  just  exceptions.  This  commission  w^as 
closed  on  the  2d  of  April  1819 ;  and  soon  after  filed  in  court. 
Among  the  papers  of  this  case  there  is  a  document  marked  as 
having  been  filed  on  the  15th  April  1819,  which  is  entitled  in  these 
words,  "  The  answer  of  JYicholas  Strike,  of  the  city  of  Baltimore,  to 
the  petition  of  William  McDonald,  filed  in  Baltimore  County  Court 
against  this  defendant."  There  were  sundry  deeds  and  other  docu- 
ments filed  by  the  parties,  as  evidence  in  the  case.  From  the 
proofs,  thus  collected,  it  appears  that  the  claims  and  allegations  of 
the  plaintiffs,  as  set  forth  in  their  bill,  were  substantially  and  suffi- 
ciently sustained. 

28th  May,  1822. — Dorse  v,  Chief  Judge. — The  said  cause  being 
ready  for  hearing,  and  having  been  fully  argued  by  complainants 
and  defendants,  the  bill,  answers,  exhibits,  testimony,  and  all  other 
proceedings,  were  by  the  court  read  and  considered  ;  and  it  being 
fully  established  to  the  satisfaction  of  the  court,  that  the  deeds  of  the 
sixteenth  January,  1811,  from  the  defendant  Rogers  to  the  defend- 
ant Strike,  mentioned  in  the  said  proceedings,  were  executed  for  the 
purpose  of  defrauding  the  creditors  of  Rogers,  and  without  bona  fide 
consideration, — Decreed,  that  the  said  deeds  be,  and  they  are  here- 
by declared  null  and  void,  as  against  the  complainants  in  this 
cause. — Decreed  also,  that  the  property  in  said  deeds  contained  be 
sold.  T\\?ii  Henry  W.  Rogers  and  Samuel  Moale  be,  and  they  are 
hereby  appointed  trustees  for  the  purpose  of  making  said  sale,  &c. 
And  the  trustees  shall  bring  into  this  court,  the  money,  or  securities 
for  money,  arising  from  said  sale  or  sales,  to  be  applied  under  the 
court's  direction,  after  deducting  the  costs  of  this  suit,  and  such 
commission  to  the  trustees  as  the  court  shall  think  proper  to  allow, 
in  consideration  of  the  skill,  attention  and  fidelity,  wherewith  they 
shall  appear  to  have  discharged  their  trust.  All  equities  as  to  the 
distribution  of  the  proceeds  of  sale,  are  reserved  by  the  court  for  hear- 


STRIKE'S  CASE.  63 

ing,  on  the  trustees^  report,  on  bringing  into  court  tlie  money  or 
securities  arising  on  the  sale. 


Under  this  decree  the  trustees  reported,  that  they  had,  on  the 
14th  of  September  1822,  made  a  sale  of  the  two  lots,  amounting  to 
three  thousand  nine  hundred  and  fifty  dollars,  which  sale  was  finally 
ratified  on  the  10th  of  February  1823. 

31s^  May,  1823. — Ward,  Associate  Judge. — Ordered,  that  this 
case  be  referred  to  the  auditor  of  this  court  to  be  audited. 


The  solicitors  of  the  plaintiffs,  by  their  petition,  stated,  that  the 
plaintiffs  had  agreed  to  allow  them,  as  a  compensation  for  their 
services,  a  commission  of  twenty  per  cent,  on  the  sum  recovered, 
deducting  therefrom  fifty  dollars  from  each  which  had  been  paid  to 
them ;  that  they  had  so  far  conducted  the  cause  successfully  and 
with  great  care  and  labor ;  that  the  court  had  ordered  notice  to  be 
given  to  the  other  creditors  of  Rogers  to  exhibit  their  claims  here 
for  settlement ;  and  as  the  introduction  of  such  other  claims  into  this 
case  might  lead  to  some  difficulty,  they  prayed  the  court  to  sanction 
the  allowance  of  their  claims,  and  to  direct  the  auditor  accordingly. 

'dth  JaniLary  1824. — Archer,  Chief  Judge. — Ordered,  that  the 
auditor,  in  stating  the  account  with  the  trustees,  allow  to  Henry  W. 
Rogers  and  Henry  M.  Murray,  solicitors  for  complainants,  the  sum 
of  $690  as  complete  fees  for  conduct  of  the  case,  subject  to  the 
usual  exceptions. 


It  is  stated,  in  the  petition  of  the  plaintiffs'  solicitors,  that  the 
court  had  ordered  notice  to  be  given  to  the  creditors  of  Rogers 
to  exhibit  their  claims ;  but  there  is  no  such  order  to  be  found 
among  the  papers.  Yet  it  must  be  presumed,  that  such  an  order 
was  passed  and  notice  given,  since  it  appears,  that  several  of 
the  creditors  of  Rogers  did  actually  bring  in  the  vouchers  of  their 
claims.  And  it  appears,  that  the  proceedings  and  schedule  on  the 
application  of  Rogers,  for  the  benefit  of  the  insolvent  law,  had  also 
been  filed.  From  all  which,  and  the  proofs  in  the  case,  the  auditor, 
on  the  6th  April  1824,  made  and  reported  a  distribution  of  the  pro- 
ceeds of  sale  among  thirteen  of  the  creditors  of  Rogers,  in  which 
report  the  auditor  says,  that  he  had  not  noticed  Stnke'^s  claims ; 
because  the  whole  of  them  appear  to  have  proceeded  from,  and  to 
have  grown  out  of  the  first  fraud  between  Strike  and  Rogers,  and  are 
not  therefore  entitled  either  to  a  preference  or  dividend. 


64  STRIKE'S  CASE. 

The  plaintiffs  excepted  to  tliis  report,  1st.  Because  there  is  no 
evidence  sufficient  in  law  to  support  the  various  claims  stated  in 
said  account,  except  the  complainants'  claim,  filed  or  exhibited  in 
the  cause.  2d.  Because  the  said  claims,  or  the  greater  part  of 
them,  have  been  paid  and  satisfied — your  exceptants  particularly 
charge  that  the  following  claims,  reported  by  the  auditor,  have  been 
fully  satisfied,  viz:  &c.  and  others  which  the  exceptants  will  be  pre- 
pared to  prove  as  this  court  may  direct.  3d.  Because  the  whole  of 
said  claims  are  barred  by  the  act  of  limitations,  which  your  exceptants 
plead  and  rely  on  in  bar  of  said  claims.  4th.  Because  from  the 
laches  and  neglect  of  the  several  parties,  named  in  said  account  and 
report  as  creditors,  to  prosecute  their  several  claims,  they  are  not 
entitled  to  the  aid  of  this  court,  or  to  come  in  for  a  proportion  of 
said  funds  ;  and  have  not  applied  to  be  let  in  for  such  distribution. 
5th.  Because  said  report  and  account  are  not  in  conformity  with 
the  evidence  in  the  cause,  or  warranted  by  the  principles  of  equity, 
and  are  in  other  respects  erroneous. 

The  defendant,  Strike,  excepted  to  the  report  of  the  auditor. 
1st.  Because  the  auditor  hath  not  stated  the  claim  of  the  said  Strike 
w^hich  is  filed  in  the  said  cause,  and  the  evidence  which  shows  the 
veracity  of  the  said  claim  sufficiently  proved  therein.  2d.  Because 
the  auditor  in  his  report  hath  mistaken  both  the  law  and  the  fact 
relating  to  the  said  claim  of  the  defendant  Jficholas  Strike. 

^Ist  January,  1825. — Ward,  Associate  Judge. — In  this  cause, 
upon  motion  of  the  complainants'  solicitor,  it  is  ordered  and  decreed, 
that  it  be  referred  to  the  auditor  of  this  court,  to  state  an  account 
of  the  sums  appearing  due  in  this  cause  from  the  defendants,  or 
either  of  them,  to  the  plaintiffs  ;  and  also  to  take  an  account  from 
the  proofs  in  the  cause,  or  such  other  proofs  as  may  be  required  by 
him  of  the  rents  and  profits  of  the  several  premises  contained  in 
the  deeds  of  16th  January  1811,  from  the  defendant  Rogers  to  tlie 
defendant  Strike ;  and  also  of  the  taxes  and  necessaiy  repairs  paid 
on  the  same  by  him  ;  and  also  such  farther  account  as  he  may  be 
directed  to  take  by  the  said  plaintiffs  or  defendants,  and  submit  the 
same  by  report  to  this  court,  reserving  farther  consideration,  &,c. 


On  the  17th  May  1825,  the  auditor  reported,  that  since  his  for- 
mer report,  the  complainants  had  filed  additional  claims  against 
Rogers,  which  were  therewith  stated.  And  the  auditor  further  reports, 
that  since  the  13th  February  1824,  when  lie  stated  an  account 
between   the    estate    of  John  Rogers  and  Henry  W.  Rogers  and 


STRIKE'S  CASE.  65 

Samuel  Moale,  trustees  of  the  said  John  Rogers,  and  made  a 
statement  of  the  claims  against  said  John  Rogers,  (which  said 
account  and  statement  are  tiled  in  this  court,)  the  complainants  in 
this  case  have  filed  additional  claims  against  said  Rogers,  which 
are  herewith  stated.  And  the  auditor  further  reports,  that  the  claims 
of  HolUngsworth  8f  Worthington  and  Irv'me  §*  Beatty,  contained  in 
the  aforegoing  statement,  have  been  withdrawn ;  and  that,  except 
the  schedule  of  John  Rogers,  there  is  no  proof  to  establish  any  of 
the  claims  contained  therein,  but  the  claims  of  the  complainants 
and  of  Robert  Taylor.  That  the  claim  of  the  said  Taylor  is  for  a 
judgment  rendered  against  Robert  Henderson,  the  former  partner  of 
Rogers,  at  October  term  1812,  of  Baltimore  County  Court,  on  a 
joint  action  with  Rogers,  w^hich  said  judgment  ^vas  revived  against 
Henderson  at  March  term  1821.  The  auditor  further  reports,  that 
he  has  herewith  made  a  statement  of  the  rents  received  by  Strike, 
and  the  sums  expended  in  repairs  done  on  the  property  in  this  cause 
mentioned,  and  in  payment  of  taxes  and  ground-rents  thereon,  so 
far  as  he  could  collect  the  same  from  the  papers  in  the  cause.  And 
further,  that  although  he  gave  notice  to  the  counsel  of  the  com- 
plainants and  defendants,  to  produce  any  further  testimony  which 
they  might  have,  no  additional  testimony  has  been  produced. 

The  plaintiffs  excepted  to  this  report,  1st.  For,  that  the  auditor  hath 
stated  the  claims  of  Strike,  one  of  the  defendantSj  for  materials,  work, 
and  repairs,  made  upon  the  dwelling-house  inhabited  by  him,  which 
were  done  for  his  accommodation,  and  not  to  benefit  the  property. 

2d.  For  that  the  said  expenses  and  repairs,  were  incurred  by 
Strike  under  deeds  w^hicli  have  been  decreed  by  this  court  to  have 
been  obtained  by  Strike  from  Rogers,  in  fraud  of  the  bona  fide 
creditors  of  the  firm  of  Henderson  ^  Rogers,  of  which  Rogers  was 
a  partner,  and  without  consideration. 

3d.  For  that  the  said  auditor  hath  not  charoed  Strike  with  the 
difference  between  the  prices  bid  by  Strike  at  a  public  sale  of  the 
said  i)ropcrty  by  the  trustees,  and  the  subsequent  sale  of  the  same, 
he  having  refused  to  comply  with  his  purchases. 

4th.  That  the  said  auditor  hath  reported  the  claims  of  Strike  for 
repairs  done  to  said  property,  although  Strike  has  refused  to  pro- 
duce the  bills  of  the  persons  who  did  the  repairs,  and  has  relied 
upon  the  conjectures  of  said  persons  as  to  their  probable  value 
after  a  long  lapse  of  time. 

5th.  These  complainants  further  except  to  the  claim  hitherto 
audited  in  the  first  report  in  favor  of  the  Mechanics  Bank  of  Balti- 

9 


66  STRIKE'S  CASE. 

'iiiore,  because,  the  same  is  barred  by  the  statute  of  limitations,  the 
said  claimants  having  laid  by,  without  making  any  demand,  until 
these  complainants,  believing  themselves  the  sole  creditors,  had  by 
their  own  exertions,  and  at  their  sole  and  great  expense,  succeeded 
in  setting  aside  the  deeds  in  this  cause  mentioned,  when  they  have 
first  presented  their  demand. 

6th.  For  that  the  said  report  and  statement  is  erroneous  and 
defective  in  point  of  law  and  fact ;  wherefore  the  said  complainants 
beg  leave  to  except  to  the  same,  and  pray  that  the  report  and 
statement  may  not  be  confirmed  by  this  court,  but  that  the  same 
may  be  remanded  to  the  said  auditor,  or  set  aside  and  annulled. 

The  defendant.  Strike,  excepted  to  this  report, — 1st.  For  that 
the  auditor  hath  not  stated  the  entire  claim  of  the  said  defendant 
Strike,  and  that  said  claim  is  not  correctly  stated  from  the  evidence 
in  the  said  cause. 

2d.  For  that  Strike  claims  the  whole  proceeds  of  the  said  sales 
of  the  said  property  mentioned  in  the  said  report,  statement,  and 
proceedings,  in  preference  to  all  the  other  claimants  in  the  said 
cause,  and  will  contend  that  he  is  so  entitled. 

3d.  For  that  the  said  report  and  statement  is  erroneous  and 
defective  in  point  of  law  and  fact ;  wherefore,  the  said  defendant, 
Strike,  begs  leave  to  except  to  the  same,  and  that  the  said  report 
and  statement  may  not  be  confirmed  by  this  court  ;  but  that  the  same 
may  be  remanded  to  the  said  auditor,  or  set  aside  and  annulled. 

After  which  the  plaintiffs,  by  their  petition,  founded  on  the  pro- 
visions of  the  act  of  1824,  ch.  196,  prayed,  that  the  case  might  be 
removed  to  the  High  Court  of  Chancery,  upon  which  it  was  so 
ordered ;  and  all  the  original  proceedings  were  accordingly  trans- 
mitted and  filed  here  on  the  15th  day  of  June,  1825. 

The  case  having  been  here  brought  to  a  hearing  upon  the 
exceptions  to  the  several  reports  of  the  auditor,  and  for  further 
directions  ;  it  was  much  and  strongly  insisted,  on  the  part  of  the 
defendant.  Strike,  that  under  the  concluding  reservation  of  this 
decree,  Avhich  was  altogether  a  new  and  peculiar  one,  every  matter 
was  now  open  for  discussion  and  adjudication,  but  the  simple 
circumstance  of  the  sale  of  the  property ;  that  this  decree  was 
entirely  in  the  usual  form,  except  the  conclusion,  which  declares, 
that  "all  equities  as  to  the  distribution  of  the  proceeds  of  sale  are 
reserved  by  the  court  for  hearing  on  the  trustee's  report,  on  bringing 
into  court  the  money  or  securities  arising  on  the  sale."  That  by 
the  addition  of  this  peculiar  clause,  to  be  found  in  no   similar 


STRIKE'S  CASE.  C7 

decree,  it  must  have  been  the  intention  of  the  court  to  reserve  all 
the  rights  and  equities  of  the  parties  for  its  consideration  and 
adjustment  after  the  sale  had  been  made. 

lOth  Aprilj  1826. — Bland,  Chancellor. — This  case  has  been 
A-ery  elaborately  argued,  and  is  now  presented  to  the  court  for  the 
purpose  of  being  finally  closed.  It  appears  to  have  been  warmly 
contested  in  every  stage.  It  has  been  partly  decided,  but  there 
yet  remains  much  to  be  judicially  considered  and  determined. 

There  is  no  principle,  in  relation  to  the  administration  of  justice, 
which  it  is  more  important  to  preserve,  or  more  necessary  to  adhere 
to,  than  that  there  must  somewhere  be  an  end  to  litigation.  A  matter 
which  has  been  once  solemnly  decided,  ought  not,  nor  cannot  be 
reheard  and  readjudicated ;  controversy  must  have  an  end,  or  society 
could  have  no  peace.  Errors  of  an  inferior  tribunal  may  be 
corrected  by  a  superior;  and  even  the  same  court,  under  certain 
circumstances,  will  correct  its  own  mistakes  by  motion,  petition, 
or  bill  of  review.  But  no  court  of  justice  can  allow  itself  to  be 
engaged  in  the  endless  task  of  weaving  and  unweaving;  of  pro- 
gressing to  an  adjudication,  and  then  going  back  to  readjudicate. 
Hence,  whatever  has  been  heretofore  determined  in  this  cause  must 
now  be  considered  as  finally  settled,  and  in  every  respect  unalterable, 
except  by  bill  of  review,  appeal,  or  in  the  regular  course  of  law. (o) 
This  does  not  seem  to  have  been  directly  controverted  in  the  argu- 
ment ;  but  the  counsel  differ  widely  as  to  the  nature  of  the  decree  of 
May,  1822,  and  as  to  how  far  it  extends  over  the  matter  of  this  suit; 
and  somc'argumehts  have  been  urged  which,  if  yielded  to,  might  lead 
the  court  unwarily  to  trench  upon  the  confines  of  that  decree. 

The  first  inquiry,  therefore,  is,  how  much  of  this  case  yet  remains 
to  be  judicially  passed  upon.  This  case  was  originated  on  the 
equity  side  of  Baltimore  County  Court,  and  has  been  removed 
into  this  court  according  to  the  act  of  assembly  authorizing  such 
removals.  It  stands  here  now  as  it  would  have  stood  had  it 
continued  there,  or  as  if  it  had  been  begun  and  instituted  here,  and 
these  proceedings  are  to  be  so  considered.  They  have  not  been 
affected  by  any  mere  circumstance  of  place  or  tribunal,  but  are  here 
as  if  they  had  all  passed  under,  and  been  sanctioned  by  the  judicial 
authority  of  the  present  Chancellor,  and  will  be  treated  accordingly. 

The  complainants  came  into  court  as  the  creditors  of  Henderson 
^  Rogersj  of  both  and  each  of  them.     The  plaintiffs  complain. 


(a)  Attorney  General  i'.  Bowyer,  3  Vcs.  725. 


68  STRIKE'S  CASE. 

that  their  debt  has  not  been  paid;  and  they  are  here  seeking 
payment.  To  enable  this  tribunal  to  give  them  the  relief  they  ask ; 
and  which  cannot  be  obtained  without  the  aid  of  its  peculiar 
powers;  they  point  to  certain  property  which,  they  allege,  was 
once  confessedly,  and  ought  now,  in  reality,  to  be  within  their  legal 
reach,  and  subject  to  the  payment  of  their  claim.  They  allege, 
that  this  property,  which  was  at  one  time  held  by,  and  in  the  name 
of  their  debtor,  Rogers,  has  been,  and  is  now  iniquitously  covered 
up,  and  withdrawn  from  their  grasp,  by  certain  deeds  of  conveyance 
made  by  their  debtor,  Rogers,  to  a  certain  JYicholas  Strike;  they 
pray,  that  this  cover,  and  these  impediments,  may  be  removed; 
that  the  property  may  be  sold;  that  the  rents  and  profits  of  it  may  be 
accounted  for;  and  that  the  proceeds  may  be  applied  in  satisfaction 
of  their  claim.  These  plaintiffs  then  call  on  Rogers  and  Strike,  as. 
defendants,  to  meet  and  repel  these  allegations,  if  they  can. 

Rogers  appears,  and  admits,  that  he  is  the  debtor  of  the  plain- 
tiffs, and  that  he  conveyed  the  property  in  question  to  Strike ; 
but  denies  that  it  was  done  with  any  fraudulent  design;  on  the 
contrary  he  avers,  that  those  conveyances  to  Strike  were  made  by 
him  in,  trust  for,  and  the  better  to  secure  the  payment  of  all  his 
just  debts.  Strike  comes  in,  and  boldly  takes  his  stand  in  direct 
and  total  opposition  to  the  plaintiffs.  He  avers,  and  undertakes  to 
maintain  and  prove,  that  he  acquired  the  property  in  question  for  a 
full  and  valuable  consideration,  and  that  he  has  a  right  to  claim 
protection  here,  as  a  fair  and  bona  fide  purchaser.  He  plants 
himself  upon  the  honesty  of  his  title,  and  claims  nothing  by  his 
answer,  which  should  not  be  conceded  to  a  defendant  who  fully 
sustains  such  a  defence  as  he  has  set  forth. 

In  application  to  this  claim  and  defence,  proofs  have  been 
collected,  and  the  case  has  been  submitted  to  the  decision  of  a 
competent  tribunal,  who,  in  May  1822,  declared  and  decreed,  that 
the  conveyances  from  Rogers  to  Strike  were  "  null  and  void  as 
against  the  complainants ;"  that  the  property  in  question  should  be 
sold;  that  the  proceeds  be  brought  in  "to  be  applied  under  the 
court's  direction,"  and  concluding  with  a  declaration,  that  "  all 
equities,  as  to  the  distribution  of  the  proceeds  of  sale,  are  reserved 
by  the  court  for  hearing,"  on  their  being  brought  in. 

It  is  held  to  be  a  first  principle,  by  every  court  of  justice,  that 
no  one  can  ask  for  its  determination  without  showing  a  sufficient 
ground  for  its  decision.  Before  a  2)laintiff  can  call  for  a  determina- 
tion in  his  flivour,  he  must  furnish  the  court  with  a  basis  whereon 


STRIKE'S  CASE.  69 

to  rest  its  judgment.  In  tliis  case,  the  validity  and  sufficiency  of 
the  plaintiff's  claim,  are  the  veiy  foundations  of  the  decree  ;  without 
that  claim  having  been  proved  or  admitted,  no  such  decree  ought, 
or  could  have  been  rightfully  made.  It  does,  therefore,  necessarily 
and  conclusively  establish  the  plaintiff's  claim ;  and  consequently, 
that  claim  cannot  now,  in  this  stage  of  this  cause,  be  again,  in  any 
manner,  put  in  controversy.  This  is  the  first  point  settled  by  this 
decree. 

The  decree  then  proceeds  to  remove  obstructions,  and  to  grant 
facilities.  The  deeds,  which  are  the  impediments  complained  of, 
are  declared  to  be  null  and  void ;  or,  in  other  words,  as  between 
the  plaintiffs  and  defendants,  they  are  totally  annihilated.  Whatever 
validity  or  operation  they  may  be  permitted  to  have,  as  between 
Rogers  and  Strike,  they  can  have  none  at  all,  "as  against  the 
complainants."  In  relation  to  them,  this  property  is  to  be  dealt 
with  as  if  those  deeds  had  never  existed.  This  is  the  second 
point  settled  by  this  decree. 

But  it  would  have  come  to  a  most  lame  and  impotent  conclusion 
had  it  stopped  here;  therefore,  after  having  determined,  that  the 
plaintiffs  had  a  claim,  which  ought  to  be  satisfied ;  and,  that  they 
had  a  right  to  have  recourse  to  this  property,  it  goes  on  to  declare, 
that  the  property  shall  be  sold,  and  the  proceeds  brought  in  to  be 
paid  over  as  the  court  should  direct.  And  this  is  the  third  point 
settled  by  this  decree.  So  far,  then,  the  matters  in  controversy 
between  these  parties  have  been  finally  closed ;  and  this  decree  must 
be  regarded,  as  all  others  of  a  similar  nature  have  been,  as  a  final 
decree ;  one  in  which  all  the  material  rights  of  the  parties  have 
been  considered  and  adjudicated  upon. 

But  the  decree  speaks  of  further  directions,  and  of  equities 
reserved ;  and  it  has  omitted  to  say  any  thing  of  certain  incidents 
to  those  rights  which  it  had  finally  settled.  As  to  all  these  parti- 
culars this  decree  yet  remains  to  be  fulfilled  and  executed.  When 
a  case,  circumstanced  like  this,  is  brought  before  the  court,  it  is 
spoken  of  as  a  case  for  further  directions ;  and  this  phrase  is  used 
in  reference  to  all  cases,  where,  after  the  final  decree,  as  in  this 
instance,  a  further  and  eventual  interposition  of  the  court  becomes 
necessary,  to  follow  out  and  complete  the  equity,  the  substance  of 
which  has  been  established  by  the  final  decree.  These  further 
directions  are  spoken  of  in  this  decree,  and  in  all  similar  decrees 
of  this  court,  and  of  the  English  Court  of  Chancery ;  but  in 
giving  them,  tlie  court  miust  act  consistently  with  itself  j  and  in 


70  STRIKE'S  CASE. 

this  instance,  where  the  decree  speaks  of"  the  court's  directions," 
and  of  all  equities  being  reserved,  its  phraseology  must  be  made 
compatible  in  all  its  parts.  The  reservation  of  all  equities  must  not 
be  used  to  fritter  away,  and  to  abnegate  the  substance  of  any  mat- 
ter, which  had  been,  in  a  previous  part  of  the  decree,  carefully  and 
solemnly  decided.  No  directions,  therefore,  will  or  can  now  be 
given,  which  are  incompatible,  with  the  points  settled  by  the 
decree.  It  is  now  brought  before  the  court  to  be  executed  and 
completed,  not  in  any  manner  to  be  revised  or  impaired.  (Z>) 

The  decree  of  May,  1822,  is  founded  upon  the  existence  of  a 
debt  due  to  the  plaintiffs  ;  but  it  does  not  specify  the  exact  amount, 
nor  does  it  say  any  thing  of  the  interest  thereon.  Interest,  in 
equity,  is  held  to  be  something  more  than  a  mere  incident ;  it  is 
the  production,  the  fruit  of  the  money  due.  In  this  case  these 
creditors  may  now  call  for  directions  as  to  these  particulars.  An 
exact  estimate  of  their  claim  could  not,  with  propriety,  have  been 
made  until  after  the  sale  of  the  property  decreed  to  be  liable  for  its 
payment ;  because,  according  to  the  course  of  the  court  in  such 
cases  as  this,  where  the  proceeds  are  insufficient  to  pay  all,  the 
interest  is  to  be  calculated  only  up  to  the  day  of  sale.  This,  then, 
is  the  first  point  left  open  by  this  decree ;  but  it  is  a  matter  which 
may  be  reduced  to  a  certainty  by  the  calculation  of  the  auditor,  to 
be  made  according  to  established  principles,  from  the  proofs  in  the 
cause  ;  any  further  special  directions  in  this  instance,  therefore,  are 
deemed  wholly  unnecessary. 

In  this  case,  the  bill  expressly  prays,  that  the  defendants  may 
be  ordered  to  account  for  the  rents  and  profits  of  the  property  in 
question.  The  decree  has  determined,  that  it  w^as  unlawfully 
detained,  by  declaring  the  deeds,  under  which  it  was  held,  null 
and  void.  It  follows,  therefore,  as  a  consequence  of  this  deci- 
sion, that  an  account  of  the  rents  and  profits  should  now  be 
ordered,  and  tJiat  directions  should  be  given,  as  to  the  time  for 
which  the  account  is  to  be  taken,  and  as  to  the  manner  of  taking 
it.  This  is  the  second  point  left  open  by  this  decree ;  and,  as  to 
which  the  Chancellor  will  now  give  directions. 

The  decree  totally  annuls  the  deeds  under  which  Strike  claims, 
without  retaining  them  as  a  security  for  any  thing.  He  can  now, 
therefore,  claim  nothing  whatever  under  them  as  against  the  com- 
plainants.    But  if,  under  all  the  circumstances  of  this  case,  apart 

(6)  The  Santa  Maria,  10  Wheat.  442. 


STRIKE'S  CASE.  71 

from  those  deeds,  and  compatibly  with  the  matters  decided  by  the 
decree,  he  can  show  any  equitable  claim  to  an  allowance  for 
improvements  he  put  upon  the  property  in  question,  while  it 
remained  in  his  possession  or  under  his  control,  the  court  may  now 
give  directions  concerning  such  an  allowance.  This  is  the  third 
point  left  open  by  the  decree,  and  upon  which  the  Chancellor  will 
now  decide. 

This  is  one  of  those  cases,  in  which  one  creditor  is  allowed  to 
file  a  bill  for  the  purpose  of  subjecting  the  property  of  his  debtor 
to  the  payment  of  his  own  claim  ;  and  of  all  others,  who  may 
obtain  permission  to  come  in  and  participate  in  the  burthens  and 
the  benefits.  The  other  creditors  are  allowed  to  come  in  at  any 
time,  either  before  or, after  the  decree;  and  it  is  most  usual  and 
proper,  that  the  decree  itself  should  command  the  trustee  to  give 
notice,  at  the  time  of  advertising  the  property  for  sale,  to  all  cre- 
ditors to  bring  in  their  claims  with  the  vouchers.  This  is  the 
fourth  point  w^hich  has  been  left  open  in  this,  as  in  all  other  decrees 
of  the  kind.  The  further  directions  as  to  claims  which  may  be 
thus  brought  in,  comprehends  every  thing  concerning  them.  As 
to.  all  matters  of  this  nature,  so  far  as  may  be  deemed  necessary  in 
this  case,  the  Chancellor  will  now  give  directions. 

It  is  said  to  be  an  established  rule  of  the  Roman  law,  and  that 
of  almost  all  modern  nations,  that  the  true  proprietor  shall  not 
recover  from  the  bona  fide  possessor,  any  rents  and  profits  which 
have  been  consumed  by  him.  But  whatever  fruits  and  profits, 
whether  natural  or  industrial,  such  as  trees  standing  or  felled ; 
grain  growing,  and  the  like,  which  remain  upon  the  land  at  the 
time  the  true  proprietor  established  his  right,  belong  to  him,  and 
may  be  recovered  from  such  possessor,  as  well  as  the  land  itself. 
Yet,  as  it  would  seem,  if  it  can  be  ascertained,  that  the  bona  fide 
possessor  was  not  merely  maintained  by  the  rents  and  profits ;  but 
was  actually  enriched  by  them,  as  by  applying  them  to  the  pay- 
ment of  his  debts,  he  will  be  held  accountable  to  that  amount  to 
the  rigliful  proprietor.  But  this  general  exemption  is  not  granted 
to  ^im,  who,  knowingly,  keeps  possession  of  another's  estate,  and 
therefore  he  is  compellable  to  account  for  all  the  mesne  profits  he 
has  derived  from  the  land  prior  to  its  being  recovered  from  him.(c) 

According  to  the  common  law  of  England,  the  real  owner  may 
recover  the  rents  and  profits  from  the  tenant,  whether  they  remain 

(c)  Karnes'  Prin.  Eq.  b.  3,  c.  1 ;  Just.  Inst.  1.  2,  tit.  1,  s.  35. 


72  STRIKE'S  CASE. 

upon  the  land  or  have  been  consumed  by  him  or  not ;  nor  does  the 
occupying  tenant's  knowing  any  thing  of  his  adversary's  title  make 
any  difference,  as  to  the  nature  and  extent  of  his  liability  for  rents 
and  profits.  At  common  law,  no  damages  were  recovered  in  any 
real  action  ;  because,  as  it  was  said,  until  the  right  to  the  land  was 
determined,  the  party  could  not  be  said  to  suffer  any  wrong.  But 
it  seems  to  have  been  considered  as  well  established  law,  from  a 
very  remote  period,  that  the  right  to  maintain  an  action  of  trespass 
for  the  recovery  of  the  mesne  profits,  followed  as  a  clear  and  neces- 
sary consequence  of  the  party^s  having  established  his  right  to  the 
land  itself.  And  it  appears  to  be  somewhat  singular,  that,  during 
the  period  when  real  actions  were  much  in  use,  the  legislature 
should  have  deemed  it  necessary  to  interpose,  for  the  purpose  of 
allowing,  by  positive  provision,  the  demandant,  in  many  of  them, 
to  recover  damages,  or  rents  and  profits;  and  yet,  that  those  real 
actions,  so  amended  and  improved,  should  have  been  superseded 
by  the  action  of  ejectment,  in  w^hich,  as  it  now  seems  to  be  settled, 
nothing  is  recovered  but  the  land,  and  the  party  is  left,  as  at  com- 
mon law,  to  recover  the  mesne  profits  in  a  separate  action  of  tres- 
pass. But  the  right  to  recover  the  mesne  profits  by  way  of  damages 
in  the  modern  action  of  ejectment  itself,  is  recognised  by  an 
English  statute,  passed  in  the  year  1664,  and  the  practice  of  so 
recovering  them,  seems  to  have  prevailed  for  some  time  in  England^ 
and  also  in  this  State. (d) 

As  early  as  the  year  1667,  in  a  case  w^here  lands  were  settled 
for  the  payment  of  debts,  the  trustees  w'ere  held  accountable  in 
equity  for  the  rents  and  profits  to  the  creditors  for  whom  they  w^ere 
received ;  and  in  1685,  it  was  held,  by  the  Court  of  Chancer}', 
that  he  who  took  the  mesne  profits  by  wrong,  was  considered  as 
trustee  for,  and  accountable  to  him  who  had  the  right ;  and  thence- 
forward the  Court  of  Chanceiy  made  all  persons  account  for  the 
mesne  profits  they  had  received,  to  such  persons  as  had  the  equita- 
ble title.  And  it  is  now  settled,  that  W'here  there  is  a  serious 
difficulty  in  recovering  at  law,  fraud,  concealment,  or  the  like,  or 
where  the  title  is  merely  equitable,  the  party  may  recover  the  re,nts 
and  profits  in  equity,  (e)  But  in  chancery,  as  in  the  courts  of 
common  law,  there  seems  to  have  been  always  a  strong  disposition 


{d)  2  Bac.  Abr.  tit.  Ejectment,  H. ;  16  &  17  Cai-.  2,  c.  8 ;  Goodtitler.  Tombs, 
3  VVils.  120;  Lewis  v.  Beale,  1  H.  St  McH.  1S5  ;  Joan  St  McCubbin  r.  Shields, 
3  H.  &.  McH.  7;  Gorc'.s  Lessee  v.  Wortliington,  3  H.  J<.  McH.  96.— (c)  Norton  v. 
Freclier,  1  Atk.  525. 


STRIKE'S  CASE  73 

to  keep  the  adjudication  upon  the  title  entirely  apart  from  the  direc- 
tion as  to  the  mesne  profits.  It  is  not  improper  that  the  final 
decree,  settling  the  right  to  the  property,  should  also  go  on  and 
decree  an  account  for  the  rents  and  profits  ;  but  it  is  usual,  where 
the  property  is  sold,  as  in  this  case,  to  leave  the  account  of  the 
rents  and  profits  to  be  provided  fi)r  in  the  subsequent  and  further 
directions,  (y) 

Where  the  party  has  no  equitable  ground  of  relief,  and  is  under 
the  necessity  of  proceeding  at  law,  by  an  action  of  trespass  for  the 
recovery  of  the  niesne  profits,  the  tenant  or  defendant,  by  pleading 
the  statute  of  limitations,  may  prevent  the  plaintiff  from  carrying 
his  claim  in  all  cases,  as  far  back  as  the  commencement  of  his  title, 
and  the  wrong  he  has  suffered.  And  should  he  proceed  in  equity, 
if  there  has  been  a  mere  adverse  possession  without  fraud  or  con- 
cealment, the  account  will  be  taken  only  from  the  time  of  filing  the 
bill,  for  it  was  his  own  fault  not  to  have  filed  it  sooner.  But  where 
the  bill  is  brought  upon  an  equitable  title,  and  there  is  a  trust ;  and 
in  the  case  of  an  infant,  or  where  there  has  been  any  fraud ;  and 
in  cases  of  dower,  an  account  of  the  rents  and  profits  will  be 
ordered,  and  that  from  the  time  the  title  accrued,  (g*) 

In  an  action  of  trespass  for  mesne  profits,  they'arfe  assessed  at 
the  discretion  of  the  jury  in  damages,  and  therefore  governed  by 
no  settled  rule  as  to  the  amount.  The  jury  may,  if  they  think 
the  circumstances  of  fraud  and  wrong  warrant,  or  require  it,  give 
large  and  vindictive  damages,  even  as  much  as  four  times  the  value 
of  the  mesne  profits  ;( A)  or,  on  the  other  hand,  they  may  mitigate 
the  damages  down  almost  to  nothing ;  and  it  does  not  appear,  that 
their  unlimited  discretion,  in  this  respect,  has  ever  been  materially 
controlled  by  granting  new  trials.  The  Court  of  Chancery  is  more 
steady  in  its  principles,  with  regard  to  the  amount  of  the  mesne 
profits.  If  the  occupant  is  tlie  mere  rightful  holder  of  the  property 
as  a  pledge  ;■  for  example,  as  mortgagee  who  has  been  let  into 
possession,  he  is  held  accountable  for  no  more  than  he  has  actually 
received,  what  has  really  come  into  his  hands,  and  not  for  the  full 
value,  or  what  he  might.have  made  by  skilful  and  proper  manage- 
ment. But  where'  the  occupant  is  a  wrongful  holder,  or  has 
obtained  pcassession,  and  has  held  it  fraudulently,  or  where,  there 

(/)  1  Bac.  Abr.  tit.  Accompt,  B. ;  2  Bac.  Abr.  tit.  Dama2;cs  ;  Shish.  v.  Foster, 
1  Ves.  88;  Dormer  v.  Fortescue,  :i  Atlc.  124;  Piiltcny  t'.  Warren,  6  Ves.  73.— 
(g)  Dormer  v.  Fortescue,  3  Atk.  121 ;  Pultcny  v.  Warren,  6  Ves.  73.— (/<)  GooJtitle 
V.  Tombs,  3  Wils.  118. 

10 


74  STRIKE'S  CASE. 

being  several  incumbrances,  the  first  mortgagee  uses  his  security 
for  the  purpose  of  shielding  the  debtor  from  the  junior  mortgagees  ; 
in  such  cases,  such  a  fraudulent  or  wrongfully  occupying  tenant,  or 
an  incumbrancer  who  makes  such  an  ill  use  of  his  security,  will  be 
charged  with  the  full  value ;  that  is,  with  such  an  amount  of  rents 
and  profits  as  a  skilful  and  diligent  tenant  might  have  made  from 
the  land.(7") 

In  this  case,  Strike  informs  us  in  his  answer,  that  he  obtained 
possession  of  the  property  in  question,  (the  one  lot  actually,  and 
the  other  legally,  as  landlord  of  Rogers,  on  whose  property  he 
levied  a  distress  for  rent  in  arrear,)  under  and  by  virtue  of  the 
deeds  from  Rogers  to  him,  on  the  date  of  them,  and  that  he  took 
and  received  the  whole  rents  and  profits.  Those  deeds  have  been 
declared  null  and  void  by  the  decree  of  May  1822,  as  against  the 
complainants,  on  the  ground,  of  fraud.  It  appears,  then,  that 
Strike  obtained  possession  of  the  property  in  question,  fraudu- 
lently ;  that  he  used  those  deeds  against  these  creditors,  and  that 
he  wrongfully  held  the  possession,  and  received  the  whole  of  the 
rents  and  profits  from  the  date  of  those  deeds  ;  consequently, 
according  to  the  principles  of  equity,  by  which  this  court  is 
governed,  and  I  may  venture  to  add,  by  the  law  of  all  civilized 
nations,  in  relation  to  rents  and  profits,  Stnke  must  be  charged 
with  the  full  value  of  the  property  in  question,  from  the  date  of  the 
deeds,  down  to  the  date  of  the  sale,  when  he  was  turned  out  of 
possession. 

In  relation  to  the  improvements,  for  which  Strike  claims  an 
allowance,  one  would  suppose,  that  in  the  administration  of  a 
system  of  jurisprudence  in  a  civilized  society,  there  could  be  no 
flux  and  reflux  of  the  principles  of  justice ;  that  however  they 
might  be  altered  or  reformed,  they  could  never,  for  any  length  of 
time,  drop  into  disuse  and  then  be  called  up  again,  and  generally 
applied.  But  it  would  seem  there  is  a  fluctuation,  perhaps 
indeed  a  mere  change  of  fashion  as  to  principles  of  law,  as  in  every 
thing  else.(  j)  It  does  not  appear  from  any  thing  I  can  learn,  that  the 
doctrine,  in  relation  to  an  allowance  to  the  occupying  tenant  for 
ameliorations,  except  as  to  mortgagees  in  possession,  has  ever  for 
a  great  length  of  time  past,  and  until  very  recently,  beej^  presented 
to  the  consideration  of  a  court  of  justice  in  this  State  as  a  subject 
of  controversy ;  and,  perhaps,  never  before  so  urged  and  investigated 

( j)  Powell,  Mortg.  292,  n. —  {j)  "  The  law  sometimes  sleeps,  and  judgment  awakens 
it ;  for,  donnil  aliquando  lex  morilur  nunquam."    Mary  Portington's  case,  10  Co.  42. 


STRIKE'S  CASE.  75 

as  it  has  been  upon  this  occasion. (/c)     The  principles  of  law,  in 
relation  to  this  matter,  belong  to  our  code,  but  until  lately,  they 


(k)  Quynn  v.  Staines,  3  H.  &  McH.  12S  ;  Ford  v.  Philpol,  5  H.  &  J.  312  ;  and  Raw- 
lings  V.  Stewart,  ante,  22. 

Rawlings  v.  Carroll. — This  bill  was  filed  on  the  13th  of  October,  1730,  by 
Aaron  Rawlings,  against  Charles  Carroll,  Esq.,  Dr.  Charles  Carroll,  John  Digges, 
and  Francis  Hall,  executors  of  James  Carroll,  deceased.  The  bill  states,  that  in 
the  year  1716,  the  plaintiff  contracted  to  purchase  of  the  testator,  James  Carroll, 
a  ti-act  of  land  called  Forest  Farm,  for  which  he  agreed  to  pay  one  hundred 
pounds  sterling,  in  two  equal  payments  at  the  time  specified ;  that  the  late  James 
Carroll  gave  to  the  plaintiff  a  bond,  conditioned  for  the  conveyance  of  the  land,  on 
the  payment  of  the  purchase  money,  and  the  plaintiff  gave  to  him  his  bond  for  the 
payment  of  the  purchase  money  at  the  times  agreed  upon ;  that  ailerwards,  James 
Carroll  made  his  will,  in  which  he  appointed  these  defendants  his  executors,  and 
soon  after  died,  without  having  conveyed  the  lands  to  the  plaintiif  according  to  the 
terms  of  his  contract ;  although  the  plaintiif  had  always  been,  and  then  was,  ready  and 
willing,  thereupon  to  pay  the  purchase  money  ;  and  that  the  defendants  had  brought 
suit  on  the  bond  given  by  the  plaintiff  lor  the  purchase  money,  and  v/ere  about  to 
enforce  payment.  Whereupon,  the  bill  prayed,  that  the  defendants  might  be  directed 
tq  convey  the  lands  to  him  as  stipulated  by  tlieir  testator;  and  that  they  might  until 
then  be  enjoined  from  proceeding  at  law  The  injunction  was  granted,  and  issued 
accordingly. 

The  two  Carrolls  filed  their  answer,  in  which  they  admit  the  contract  as  stated, 
and  that  they  had  brought  suit  on  the  bond  for  the  purchase  money.  But  they  aver, 
that  their  testator,  according  to  the  terms  of  his  contract,  had  made  a  conveyance  of 
the  land  to  the  plaintiif,  as  appeared  by  copies  of  the  deed  and  a  receipt  fox  it  given 
by  the  plaintiff,  which  they  then  exhibited  with  their  answer  ;  that  they  were  the 
principal  and  only  acting  executors  ;  that  the  defendant,  Digges,  had  meddled  very 
little  with  the  estate,  and  the  defendant  Hall,  had  renounced  the  executorship. 

To  this  answer  the  plaintiff  put  in  a  general  replication.  A  commission  wa.s 
issued,  under  which  testimony  was  taken  and  returned ;  after  wliich  the  case  was  set 
down  for  final  hearing. 

May  Term,  1736. — This  cause  coming  to  be  heard  before  his  excellency  Samvel 
Os^le,  esquire,  chancellor  and  keeper  of  the  great  seal,  in  presence  of  the  counsel  on 
both  sides,  the  complainant's  bill,  and  the  defendants'  answer,  and  the  whole  pro- 
ceedings thereon  were  read,  and  appeared  to  be  as  before  set  forth. 

Whereupon,  and  upon  hearing  the  bill  and  answer,  and  the  proofs  taken  in  the 
cause  read,  and  what  was  offered  by  counsel  on  both  sides,  this  court  doth  think  fit, 
and  declare,  that  the  defendants  procure  a  conveyance  from  the  heir  at  law  of  tlie 
testator,  agreeable  to  the  conveyance  which  the  complainant  received  from  the  tes- 
tator, and  gave  his  receipt  for,  or  procure  an  act  of  assembly  to  confinn  that  said 
deed,  or  such  another,  on  or  before  the day  of  April ;  and  that,  upon  the  exe- 
cution of  such  deed  by  the  heir,  or  confirmation  of  such  deed  by  act  of  assembly, 
the  complainant  pay  the  consideration  money,  and  the  interest  thereof,  from  the  date 
of  the  complainant's  bond,  mentioned  in  the  bill  of  complaint ;  and  in  case  such 
deed  cannot  be  had  from  the  heir  at  law,  or  that  an  act  of  assembly  cannot  b'fe  pro- 
cured for  confirming  such  a  deed  as-  herein  before  mentioned,  that  the  complainant 
pay  only  the  interest  of  the  purchase  money  from  the  date  of  his  bond,  as  a  recom- 
pense for  the  use  of  the  land  ;  and,  that  the  judgmeht  at  law,  and  the  injunction  bond 
be  deemed  to  be,  and  stand  as  security  for  the  principal  money  and  interest  in  case  a 


76  STRIKE'S  CASE. 

have  been  suffered  to  lie  unnoticed  among  those  rarely  used  regu- 
lations, which  are  seldom  examined  but  by  the  curious.  In  a 
neighbouring  State,  so  far  back  as  the  year  1643,  it  seems  to  have 
been  deemed  expedient  to  place  upon  its  statute  book,  all  the 
rules  in  relation  to  compensation  for  improvement,  made  upon  the 
land  by  one  man,  the  title  of  which  was  in  another.  (Z)  Yet  upon 
a  recent  occasion,  when  a  judicial  decision  was  called  for  upon  the 
occupying  claimants  law  of  Kentucky^  involving  matters  which  in 
a  greater  or  less  degree  attracted  the  attention  of  the  whole  Union, 
it  was  found  that  those  legislative  provisions  had  disappeared  from 
the  revised  statute  book  of  that  State,  and  it  required  some  care  to 
ascertain  distinctly  what  was  then  its  law  upon  the  subject. (7?i) 

It  seems  to  be  a  sound  and  a  very  generally  admitted  principle 
of  justice,  that  no  man  shall  be  allowed  to  enrich  himself  from  the 
losses  of  another ;  or,  as  it  is  expressed  in  the  Roman  law,  nemo 
debet  locupletari  aliena  jadura.  The  moral  force  of  this  rule,  in  all 
cases  to  which  it  applies,  and  as  between  parties  alike  fair  and  in- 
nocent, appears  to  have  been  considered  as  altogether  irresistible. 
In  all  cases  in  which  the  court  is  called  on  to  apply  this  rule,  it  is 

title  be  made  to  the  complainant  as  already  mentioned ;  and  if  no  such  title  shall  be 
made,  then  the  judgment  at  law,  and  injunction  bond  to' stand  as  securit)'  for  the 
interest  of  the  money  only. 

The  defendants  in  this  cause  having  declared  in  court,  that  they  applied  to  the 
last  assembly  for  an  act  to  confirm  the  deed,  mentioned  in  the  former  decretal  order 
made  in  this  cause,  but  could  not  obtain  such  act ;  and  that  the  heir  at  law  is  a  minor, 
and  will  not  attain  his  full  age  ia  several  years,  so  that  tliey  have  no  means  in  tlieir 
power  to  procure  such  a  conveyance  as  is  mentioned  in  the  said  order ;  therefore, 
they  pray  his  excellency  the  chancellor's  further  order  therein. 

77(6  chancellor  having  heard  council  on  botli  sides,  and  taking  Uie  same  into  his 
consideration,  doth  tliink  fit  to  order,  tliat  the  injunction  be  made  perpetual  in  this 
cause,  in  case  the  complainant  shall  pay  the  interest  for  the  purchase  money  from  the 
date  of  his  bond,  mentioned  in  the  proceedings,  and  deliver  up  the  possession  of  Uic 
land  to  the  defendants,  which  are  to  be  complied  with  by  the  last  day  of  October 
next,  with  liberty  to  the  complainant  to  finish  his  crop  of  all  kinds  on  tlie  said  land, 
and  remove  hi*  said  crop  and  cattle  therefrom  ;  or  that  the  injunction  be  dissolved. 
And  further,  it  is  ordered,  that  a  reasonable  allowance  be  made  to  the  complainant, 
by  the  defendants,  for  any  imprpvemcnts  which  the  complainant  has  made  on  the 
said  land,  and  which  may  be  useful  and  beneficial  to  any  person  who  may,  or  shall 
herealler  have  possession  thereof.  And  also,  that  the  complainant  pay  and  satisfy 
to  the  defendants  for  any  waste  committed  by  the  complainant  on  the  said  land, 
beyond  what  might  have  been  proper  in  the  use  and  working  thereof,  by  the  com- 
plainant, during  tiie  time  of  his  possession  thereof. —  Chanc.  Proc.  Lib.  I.  R.  No.  2, 
fol.  750. 

(0  1  Hen.  Virg.  Stat.  260, 349,  -443  ;  2  Hen.  Virg.  Stat.  m.—{m)  Green r.  Biddlc, 
8  Wheat.  1,  and  Appendix,  1. 


STRIKE'S  CASE.  77 

essential  that  it  should  most  clearly  and  distinctly  appear,  that  he 
who  claims  an  allowance  for  hi*  losses,  in  the  shape  of  compensa- 
tion for  improvements,  should  be  entirely  and  absolutely  free  from 
all  blame ;  because  equity  never  interferes  in  favour  of  a  wrong- 
doer. In  cases  where  a  bona  fide  possessor  of  property,  one  who 
is  ignorant  of  all  the  facts  and  circumstances  relating  to  his  adver- 
sary's title,  under  a  confident  apprehension  and  belief,  that  he  was 
himself  the  true  o^vner,  proceeds  to  make  improvements,  and 
increase  the  value  of  the  subject  so  held,  it  seems  to  have  been 
almost  universally  admitted,  that  an  allowance  for  such  increased 
value  should  be  made,  at  least  to  th,e  extent  of  the  rents  and. pro- 
fits. According  to  the  Roman  law,  such  a  claim  for  improverhents 
may  be  extended  to  their  full  value,  beyond  the  amount  of  the  rents 
and  profits  as  against  the  improved  subject  itself. (w)  And  so,  too, 
according  to  the  marine  law,  an  account  for  meliorations  is  made, 
if  necessary,  even  beyond  the  profits  ;  and  for  ascertaining  the 
amount,  the  rule  is  to  consider  the  quantum  of  the  improved  state 
in  which  the  ship  comes  into  the  hands  of  the  original  proprietors ; 
for  as  to  that  part,  it  is  not  a  restitution  to  them,  but  a  new  acqui- 
sition. (0)  But  according  to  the  English  principles  of  equity,  if  the 
true  owner  insists  on  an  account  of  rents  and  profits,  as  he  may, 
not  according  to  the  value  when  the  purchaser  entered,  but  accord- 
ing to  the  present  value,  the  court  will  order  an  allowance  to  be 
made  for  repairs  and  improvements. (^) 

But  where  a  man  has  acted  fraudulently,  and  is  conscious  of  a 
defect  in  his  title,  or  has  bought  a  title  notoriously  bad  at  the  time 
of  the  purchase,  in  such  a  case,  as  2i  mala  fide  possessor,  he  is  per- 
mitted by  no  law  to  make  any  claim  whatever  for  improvements  ; 
he  must  take  the  consequences  of  his  ovtoi  imprudence.  By  the 
Roman  law  it  is  declared,  that  if  a  man  build  with  his  own  mate- 
rials upon  the  ground  of  another,  the  edifice  becomes  the  property 
of  him  to  whom  the  ground  belongs,  because  the  owner  of  the  ma- 
terials is  understood  to  have  made  a  voluntary  alienation  of  them, 
if  he  knew  he  was  building  upon  another's  land ;  and  by  the  com- 
mon law  it  is  in  general  true,  that  where  a  tenant  aflSxes  any  thing 

(n)  Dormer  v.  Fortescue,  3  Atk.  134;  Pow.  Mort.  by  Coven.  313,  n.  0;  Kames' 
Pri.,Eq.  b.  1,  p.  1,  s.  3 ;  b.  3,  c.  1 ;  Just.  Inst.  1.  2,  tit.  1,  s.  29,  &  notes ;  Sug.  V.  & 
P.  52.5 ;  Savage  r.  Taylor,  Fors.  234 ;  Deane  v.  Izard,  1  Vern.  159 ;  Shine  v.  Gough, 
1  Ball  &  B.  444 ;  Hardcastle  v.  Shafto,  1  Anstr.  1S5  ;  Attorney  General  v.  Ballol  Coll. 
9  Mod.  411 ;  Webb  i'.  Rorke,  2  Scho.  &.  Lefr.  676.— (0)  The  Perseverance,  2  Rob. 
239;  The  Eerlighett,  3  Rob.  101;  Nostra  de  Conceicas^  5  Rob.  294.— (p)  Sugd. 
V.  &  P.  525. 


78  STRIKE'S  CASE. 

to  the  freehold,  he  does  thereby  immediately  vest  it  in  the  free- 
holder, so  entirely,  that  it  would  be  waste,  in  the  tenant,  afterwards 
to  remove  ii',{q)  and  so  it  has  been  held,  in  the  English  court  of 
admiralty,  that  if  a  person  buys  a  ship,  the  title  to  which  is  noto- 
riously invalid,  it  must  be  at  his  own  peril  that  he  proceeds  to  lay 
out  money  in  repairing  and  improving  her,  as  no  allowance  for 
ameliorations  will  be  made  in  such  case.(r) 

In  the  argument  of  Coidter''s  case,(s)  among  other  things,  it  is 
said,  "  in  divers  cases,  one  who  is  in  of  his  own  wrong,  shall 
recoupe  and  retain,  &c.  He  who  hath  a  rent  of  j£10  issuing  out  of 
certain  lands,  disseises  the  tenant  of  the  land,  in  an  assise  brought 
by  the  disseisee,  the  disseisor  shall  recoupe  the  rent  in  the  damages  ; 
so  that  where  the  mesne  profits  of  the  land,  in  such  case,  were  of  the 
value  of  jei3,  the  disseisee  shall  recover  but  £3.  The  disseisor 
shall  recoupe  all  in  damages  which  he  hath  expended  in  amending 
the  houses."  And  as  an  authority  in  support  of  the  last  position, 
a  case  is  cited  as  far  back  as  the  year  1340.  This  argument  is 
adduced  in  a  case  in  which  the  only  question  was,  whether  an 
executor  de  son  tort  could  retain.  The  court  in  their  opinion  held  that 
he  clearly  could  not,  assigning  the  most  satisfactory  reasons ;  and 
they  then  go  on  to  say,  that  "  as  to  the  case  of  recouper  in  damages 
in  the  case  of  rent-service,  charge,  or  seek,  it  was  resolved,  that 
the  reason  of  recouper  in  such  case  is,  because  otherwise  when  the 
disseisee  re-enters,  the  arrearages  of  the  rent-service,  charge,  or 
seek,  would  be  revived ;  and  therefore  to  avoid  circuity  of  action, 
and  circuitus  est  evitandus  et  honi  judicis  est  lites  dirimere,  ne  lis  ex 
lite  onafur,  the  arrearages  during  the  disseisin  shall  be  recouped 
in  damages ;  but  if  the  disseisor  ought  to  have  common  on  the 
land,  the  value  of  the  common  shall  not  be  recouped,  for  by  the 
regress  of  the  disseisee,  he  should  not  have  any  arrearages  or  re- 
compense for  them."(<)  The  court  take  no  notice  of  the  position 
advanced  in  the  argument,  that  "  the  disseisor  shall  recoupe  all  in 
damages  which  he  hath  expended  in  amending  of  the  houses,"  and 
assign  a  reason  for  allowing  the  recouper  in  the  other  instances 
put,  that  is  utterly  incompatible  with  allowing  a  disseisor  or  mala 
fide  possessor,  to  recoupe  what  he  had  expended  in  mending  the 
houses,  and  therefore  the  position  cannot  be  admitted  to  be  sound 
law,  to  the  full  extent  for  which  it  was  advanced,  if  at  all. 


(7)  Am.  &  Fer.  Law  Fix.  14,  241.— (r)  Just.  Inst.  b.  2,  tit.  1,  s.  .30;  Nostra  de 
Conceicas,  5  Rob.  294.— (•■?)  5  Co.  30.— (0  Green  v.  Biddle,  8  Wheat.  SI. 


STRIKE'S  CASE.  79 

The  term  recoupe  in  the  common  law,  signifies  the  keeping  back 
or  stopping  something  which  is  due,  and  is  used  for  "  to  defalk,  or 
to  discount ;"  of  which  Coulter'' s  case  furnishes  an  illustration.  It 
is  from  the  common  law  doctrine  of  recouper  that  our  legislative 
provisions  for  "  pleading  discount, "(li)  and  the  English  statutes  of 
set-off,  about  half  a  century  later,  have  been  derived,  (v)  They  all  rest 
upon  precisely  the  same  principles.  The  object  is  to  prevent  cross 
actions,  or,  as  the  books  express  it,  circuity  of  action  ;  and  to  allow 
the  opposing  claims  of  the  same  parties  to  be  settled  in  one  action, 
which  must  otherwise  necessarily  give  rise  to  two  actions ;  but 
however  reasonable  and  desirable  it  may  be,  thus  to  put  an  end  to 
two  subjects  of  litigation  in  one  and  the  same  suit,  yet,  as  it  ap- 
pears from  Coulter^s  case,  no  man  shaU  be  allowed  to  obtain  this 
advantage  by  his  own  wrong ;  and  therefore  it  is,  that  an  executor 
of  his  own  wrong  will  not  be  allowed  to  recoupe  and  retain. 

Every  claim,  however,  must  have  a  fair,  legal,  or  equitable  basis, 
whether  presented  to  the  court  as  the  cause  of  an  original  action, 
or  by  way  of  recouper,  discount  or  set-ofF.  The  claim  for  rents  and 
profits,  and  the  opposing  claim  for  improvements,  each  of  them  rests 
upon  principles  of  law  and  equity  that  are  wholly  separate  and  dis- 
tinct. Whether  or  not  the  proprietor  shall  recover  rents  and  profits 
must,  in  each  case,  depend  upon  the  justice  and  equity  with  which 
he  sustains  his  claim.  If  he  has,  for  an  unreasonable  time,  slept 
upon  his  rights,  and  there  should  appear  to  be  any  suspicious  cir- 
cumstances about  his  case,  or  any  discoverable  infirmity  in  it,  the 
court  will  lessen,  or  altogether  reject  the  claim.  So,  on  the  other 
hand,  he  who  presents  a  claim  for  ameliorations,  must,  in  like  man- 
ner, show,  that  it  is  sustainable  on  its  own  independent,  substan- 
tial, and  fair  principles  of  equity  ;  as  it  stands  exhibited  before  the 
court,  it  must  appear  in  all  respects  unsullied  by  wrong  or  decep- 
tion ;  it  must  have  no  taint  of  fraud  about  it ; — if  it  has,  it  cannot  be 
allowed. 

Such  claims  as  these  for  rents  and  profits,  and  for  ameliorations, 
may  very  often  present  themselves  in  a  court  of  equity  in  opposi- 
tion to  each  other ;  and  be  set  up  by  litigating  parties,  by  way  of 
recoui>er,  discount  or  set-ofF,  the  one  against  the  other.  But  if,  as 
in  the  case  of  an  executor  de  son  tort,  a  man  shall  not  be  permitted 
to  take  advantage  of  his  own  wrong,  even  so  far  as  to  place  him- 

(w)  1654,  ch.  23 ;  1699,  ch.  39 ;  1715,  ch.  29;  1729,  ch.  20,  s.  5 ;  1735,  ch.  46,  s.  7. 
Baltimore  Insii.  Comp.  v.  M'Fadon,  4  H.  &.  J.  42;  Brack.  Law  Misc.  185.— (v)  2 
Geo.  2,  c.  22,  s.  13  ;  Just.  Inst.  b.  4,  tit.  6,  s.  30. 


80  STRIKE'S  CASE. 

self  in  a  situation  to  recoupc  a  just  and  equitable  claim,  most  cer- 
tainly the  law  would  not  endure  a  wrong-doer  to  oppose  a  fair 
claim,  in  any  degree  whatever,  by  one  which  had  originated,  and 
was  wholly  founded  in  his  own  wTong.  Hence  it  is  that  a  Tnala 
fide  possessor  can,  in  no  case,  nor  under  any  circumstances,  be 
allowed  any  thing  for  improvements,  either  beyond  or  even  to  the 
amount  of  the  rents  and  profits.  A  different  rule,  as  has  been 
justly  observed,  would  place  it  in  the  power  of  the  wrongful  pos- 
sessor, to  improve  the  right  owner  out  of  his  estate.  Yet  it  is  said, 
that  where  the  sums  are  large,  the  peculiar  circumstances  of  the 
case  may  influence  the  court  in  directing  the  account  to  be  taken 
from  the  filing  of  the  bill  only,  and  not  from  the  time  of  taking 
possession.  (t«) 

Now  how  stands  the  case  under  consideration  in  reference  to 
this  claim  for  improvements  ?  The  bill  charges,  that  Rogers  con- 
veyed the  property  in  question  to  Strike,  for  the  purpose  of  avoid- 
ing the  payment  of  Rogers^  creditors  ;  Strike  answers  and  denies 
the  charge,  and  avers,  that  the  conveyances  to  him  were  absolute, 
fair,  and  for  a  valuable  consideration,  and  that  he  is  the  bona  fide 
purchaser  and  holder  of  the  property.  But  the  court,  by  the  decree 
of  May,  18.22,  has  declared  those  conveyances  to  be  null  and  void, 
as  against  the  complainants,  and  directed  the  property  to  be  sold 
for  their  benefit.  Hence  it  clearly  appears,  that  Strike  now  stands 
before  this  court  convicted  and  condemned  as  a  fraudulent  and  mala 
fide  purchaser  and  holder  of  the  property.  He,,  one  of  the  very 
contrivers,  and  a  party  to  the  fraud,  claims  an  allowance  for  im- 
provements on  the  property  so  obtained  and  held.  Such  a  claim, 
it  is  believed,  was.,  never  sanctioned  by  a  court  of  justice,  in  any 
country  or  at  any  time.  According  to  all  law,  and  every  principle 
of  equity,  this  claim  for  improvements  of  every  description,  must 
be  totally  and  absolutely  rejected. 

Strikers  claim  for  repairs  and  improvements  has  been  thus  dis- 
posed of,  -on  general  principles.  But  it  is  alleged  he  has  another 
and  special  foundation  for  his  claim  for  ameliorations  and  advances, 
under  the  concluding  sentence  of  tlie  decree  of  May,  1822.  But, 
that  decree  has  declared  the  deeds  from  Rogers  to  Strike  "  null  and 
void  as  against  the  complainants  ;"  it  has  retained  them  as  a  secu- 
rity for  nothing,  and  in  no  respect  whatever.  The  several  parts  of 
■  that  decree  must  be  made  to  harmonize  one  with  anotliea-.  Those 
deeds  which  have  been  so  totally  annulled,  as  against  the  com- 
(w)  Sugd.  V.  &  P  526, 


STRIKE'S  CASE.  gj 

pkunants,  cannot,  therefore,  consistently  with  that  decree,  be  allow- 
ed to  stand  as  mortgages  against  them,  to  secure  to  Strike  either 
the  amount  of  the  improvements,  or  the  advances  in  money  he  has 
made  to  Rogers.  Upon  that  gi'ound  Strike  cannot  stand,  because 
it  is  completely  covered  by  the  decree.  This  being  the  decided 
opinion  of  the  Chancellor,  he  might  deem  it  unnecessaiy  to  notice 
that  class  of  cases  which  speak  of  allowances  for  improvements 
and  advances  made  by  actual  mortgagees,  or  by  those  pseudo  pur- 
chasers of  young  heirs  and  others,  whose  conveyances  are  allowed 
by  special  favour,  to  stand  and  be  considered  as  of  the  nature  of 
mere  mortgages.  Yet  from  the  manner  in  v\^hich  those  cases  have 
been  pressed  forward,  some  further  reasons,  showing  why  they  are 
inapplicable  to  this  case,  may  be  expected. 

In  this  case  it  must  be  distinctly  and  constantly  recollected,  that 
Strike  now  claims  reimbursement  for  his  improvements  and  ad- 
vances, not  of  Rogers,  but  out  of  the  proceeds  of  the  property  in 
question,  and  against  the  creditors  of  Rogers,  w^ho  ai'e  here  as  the 
complainants.  All  those  cases  of  mortgages  and  pseudo  purchases, 
are  governed  alike  by  the  same  principles  of  equity.  A  separate 
examination  of  each  of  them  will  therefore  be  entirely  unnecessary. 

In  all,  the  bill  is  brought  by  the  grantor  against  the  grantee,  or 
between  parties  who  stand  precisely  in  that  relation  to  each  other, 
to  redeem  the  mortgaged  property,  or  to  set  aside  a  conveyance 
which  had  been  improperly  or  fraudulently  obtained.  And  on  the 
case  being  made  out  by  the  proofs,  the  tribunal  has  unilbrmly  an- 
swered to  him  who  asked  the  relief,  "you  must  do  equity  before 
you  shall  obtain  equity.  It  is  true,  you  have  been  imposed  upon 
and  defrauded — but  it  is  no  less  true,  that  yoa  have  been  partially 
and  in  some  degree  benefitted  ;  you  have  received  money  from  your 
opponent ;  he  has  permanently  enhanced  the  value  of  your  estate ; 
refund  the  money  you  have  received,  pay  for  the  increased  value 
of  your  estate,  and  it  shall  be  restored  to  you ;  the  conveyances  of 
which  you  complain  shall  be  annulled  ;  until  then  they  shall  stand 
as  a  security  for  those  improvements  and  advances.''  Such  is  the 
language  of  the  Chancellor  in  those  cases  where  he  acts  under  the 
influence  of  the  maxim,  that  he  who  asks  equity  must  do  equity ; 
and  this  maxim  is  sanctioned  and  illustrated  by  an  almost  endless 
variety  of  cases  to  be  found  in  the  books. 

But  the  application  of  this  maxim  in  these  cases,  and  for  the 
most  part,  depends  not  only  upon  the  immediate  relationship  be- 
tween the  parties  of  grantor  and  grantee,  but  also,  almost  always, 

11 


82  STRIKE'S  CASE. 

upon  the  vendee's  being  brought  before  the  court  by  the  vendor ; 
that  is,  the  contracting  party  injured  as  plaintiff,  against  the  party 
injuring  as  defendant.  A  few  examples  will  sufficiently  illustrate 
this  position  :  The  plaintiff  came  to  be  relieved  against  the  penalty 
of  a  bond ;  the  ground  of  equity  was  established  by  the  proofs, 
and  the  relief  was  decreed,  but  not  without  the  payment  of  princi- 
pal and  interest,  even  although  it  exceeded  the  penalty  of  the 
bond.  (2:)  But  where  lands  were  devised  for  the  payment  of  debts, 
and  there  was  a  bond  debt,  the  interest  of  which  had  outran  the 
penalty,  yet  the  creditor,  on  a  bill  filed  by  him,  was  allowed  to  re- 
cover no  more  than  the  penalty.  In  the  first  case  the  creditor  was 
sustained  by  this  maxim  of  equity ;  in  the  second,  his  case  rested 
barely  on  his  own  contract.  Again,  the  plaintiff  for  ninety  pounds 
lent,  fraudulently  obtained  a  bond  for  eight  hundred  pounds,  on 
which  he  obtained  a  judgment,  and  the  object  of  the  bill  was  to 
have  certain  lands  subjected  to  the  plaintiff's  satisfaction  in  equity. 
But  the  court  would  not  give  him  any  relief,  not  so  much  as  for  the 
principal  he  had  really  lent,  and  dismissed  his  bill.  If,  however, 
the  defendant  in  this  case,  had  come  in  to  set  aside  the  judgment 
for  fraud,  equity  would  have  obliged  him  to  pay  the  ninety  pounds 
really  lent.  This  case  is  also  illustrative  of  another  maxim,  that 
he  who  has  committed  iniquity  shall  not  have  equity.  (3/) 

Now  in  order  to  bring  these  cases,  and  the  principle  they  illus- 
trate, fully  to  bear  upon  the  case  under  consideration,  it  must  appear, 
that  the  complainants  not  only  claim  under  Rogers ;  but,  that  they 
stand  here,  in  all  respects,  as  he  would  have  stood ;  and  that  they 
ask  to  have  these  deeds  vacated  upon  the  same  grounds,  that  he 
could  have  made  a  similar  prayer.  But  the  case  now  before  the 
court  is  of  a  totally  different  nature.  Rogers  himself  is  here  as  a 
defendant,  charged  as  a  particeps  fraudis,  and  relief  is  prayed  by 
these  complainants  against  him  as  well  as  against  Strike.  The 
present  creditors  do  certainly  claim  this  property  under  Rogers  ; 
and  it  is  also  true,  that  they  can  only  take  it,  subject  to  all  fair, 
legal  and  equitable  liens  with  which  Rogers  may  have  incumbered 
it,  antecedent  and  superior  to  their  claims.  But,  as  against  Strike, 
these  plaintiffs  are  to  be  considered  as  purchasers  of  the  most 
favoured  and  meritorious  class,  holding  by  a  prior  and  superior  title. 
The  improvements  and  the  advances  for  the  ground  rent,  the  Pratt- 
street  assessment,  and  the  taxes  alleged  to  have  been  made  and 

(.r)  Fran.  Max.  4.  note  ;   2  Ev.  Poth.  Obi.  SS).— (y)  Fran.  Max.  S. 


STRIKE'S  CASE.  S3 

paid  by  Strike,  give  Lim  no  lien  upon  the  property  itself  against 
the  rightful  owner,  either  Rogers,  these  creditors,  or  any  one  else. 
But  if  Rogers  had  come  here  to  be  relieved  against  the  fraud  prac- 
tised on  him  by  Strike,  and  to  have  the  property  restored  to  him, 
the  court  would  have  granted  him  relief  only  upon  condition  of  his 
reimbursing  Strike  for  all  his  improvements  and  advances,  because 
they  enured  to  the  use  and  benefit  of  Rogers.  But  no  equitable 
principle  of  that  sort  can  be  urged  against  the  complainants.  They 
are  here  as  creditors,  praying  to  be  relieved  against  a  fraud  con- 
trived between  Rogers  and  Strike. 

But,  admitting  all  this.  It  is  alleged,  that,  independently  of  the 
vacated  deeds  and  of  the  decree,  Strike  has  a  claim,  as  a  kind  of 
salvor  of  tliis  property,  which  ought  to  be  allowed.  It  is  said  he 
has  saved  it  from  the  hands  of  the  ground  landlord,  by  paying  the 
ground-rent;  he  has  saved  it  from  the  grasp  of  the  Pratt-street 
commissioners,  by  paying  the  assessment  levied  upon  it ;  and  he 
has  saved  it  from  the  power  of  the  State,  by  paying  the  taxes.  He 
maintains,  that  he  has  a  right  to  assume  the  place,  and  to  be  sub- 
stituted for  those  claimants,  and  he  founds  this  claim  upon  the  doc- 
trine of  substitution.  But  Strike,  as  regards  these  complainants, 
was  an  uninvited  officious  mala  fide  meddler  with  property  which 
he  knew  did  not  belong  to  him,  and  which  he  was  apprised  ought 
to  be  liable  to  the  claims  of  Rogers^  creditors.  He  made  these  ad- 
vances to  serve  himself,  not  for  the  benefit  of  these  complainants ; 
and  if  he  had  an  intention,  that  these  advances  should  enure  to  the 
personal  benefit  of  any  one,  it  must  have  been  to  Rogers  ;  because  it 
was  from  him  he  took  the  estate  ;  and  if  the  conveyances  were  to  be 
annulled,  it  was  only  against  him  he  could  seek  reimbursement. (c) 
Strike,  therefore,  cannot  have,  against  these  complainants,  any  sha- 
dow of  countervailing  equity  on  which  to  rest  his  claim  for  these 
advances,  out  of  the  proceeds  directed  to  be  brought  into  court. 

Having  discussed  the  liabilities  and  pretensions  of  the  defend- 
ants, let  us  now  consider  the  interests  of  the  complainants  among 
themselves.  This  is  what  is  commonly  called  a  creditors'  bill ; 
and  where  two  or  more  creditors  bring  such  a  bill,  or  others  come 
in  afterwards,  the  adjustment  of  their  rights  and  interests,  in  rela- 
tion to  each  other,  and  the  objections  which  the  defendants  may 
make  against  those  who  have  come  in,  after  the  institution  of  the 
suit,  most  generally  remain  to  be  considered  and  decided  when  the 


(r;  Kames'  Pri.  Eq.  b.  1,  p.  1,  s.  3. 


84  STRIKE'S  CASE. 

court  is  called  on  to  make  a  distribution  of  the  fund.  The  claim 
of  the  plaintiffs  has,  as  we  have  seen,  to  a  certain  extent,  been 
settled  and  determined  by  the  decree  of  May  1822  ;  and  therefore, 
their  claim  is  not  now  to  be  reconsidered  and  reinvestigated. 

It  lias  been  objected,  that  the  bill  does  not,  as  it  ought,  allege 
that  the  complainants  sue  as  well  for  the  benefit  of  other  creditors, 
as  for  themselves.  It  is  often  a  matter  of  some  perjilexity  to  deter- 
mine who  ought  to  be  made  parties,  the  rule  being  laid  down  in 
general  terms,  that  all  who  are  interested  in  the  decree  should  be 
made  parties.  This  decree  virtually  recognises  this  as  one  of  those 
cases  in  which  all  the  other  creditors  of  the  debtor,  against  whom, 
or  whose  estate  the  suit  is  brought,  may  come  in  either  before  or 
after  the  decree,  or  at  any  time  before  the  assets  have  been  distri- 
buted, and  claim  a  proportionable  share  of  them.  And  supposing 
the  bill  had  alleged,  that  the  originally  suing  creditors  sued  as  well 
for  others  as  for  themselves,  it  is  said,  that  the  right  of  such  others 
to  come  in  could  not  now  have  been  questioned.  In  England  it 
seems  to  be  an  established  rule,  in  cases  of  this  kind,  that  the  bill 
should  distinctly  allege,  that  the  complainant  institutes  the  suit,  as 
well  for  the  benefit  of  all  othere  who  may  thereafter  come  in,  as  of 
himself.  In  this  State  such  a  qui  tarn  allegation  in  biUs  of  this  na- 
ture is  very  common,  and  is  certainly  very  proper  and  useful  in 
apprising  the  court,  and  all  concerned,  at  once,  of  the  object  and 
character  of  the  suit.  Biit  this  is  the  first  instance  here  in  which 
such  an  objection,  to  a  bill  of  this  kind,  has  ever  been  made,  so  far 
as  I  have  been  able  to  learn.  In  this  case,  it  sufliciently  appears 
from  the  whole  proceedings,  bill,  answers,  orders  and  decree,  that 
this  is  a  case  in  which  other  creditors  may  come  in ;  and  therefore 
in  this  instance,  and  in  this  stage  of  the  case,  I  cannot  say,  that 
,the  bill  is  erroneous  and  deficient  for  the  want  of  such  an  allega- 
tion ;  consequently  the  other  creditors  of  Rogers  may  be  permitted 
to  come  in  and  participate,  notwithstanding  there  is  no  such  alle- 
gation in  this  bill, (a) 

But  it  is  objected,  that  those  other  creditors  who,  it  is  alleged, 
have  actually  come  in  to  partake,  have  not  presented  themselves  in 
legal  and  proper  form,  that  their  claims  have  not  been  sufficiently 
authenticated  and  proved ;  and,  even  if  these  objections  were  re- 
moved, tliat  their  claims  are  barred  by  the  statute  of  limitations. 
These  objections  will  be  severally  considered,  and  also  the  reply, 

(a)  Martin  v.  Martin,  1  Ves.  21-1. 


STRIKE'S  CASE.  85 

that  such  objections  can  only  be  made  by  the  defendants,  and  not, 
as  in  this  instance,  by  a  creditor  or  co-plaintiff. 

In  England  it  is  the  established  practice,  after  a  decree  to  ac- 
count has  been  obtained  in  a  creditors'  suit,  to  give  notice  by  adver- 
tisement in  the  Gazette,  to  all  the  other  creditors,  to  bring  in  their 
claims  to  be  adjusted  before  the  Master  ;{a)  and  the  mode  of  doing 
so,  is  by  the  creditor's  producing  the  voucher  thereof  with  his  affi- 
davit of  the  amount  then  remaining  due.(&)  In  this  State  the 
practice  is  nearly  the  same.  But  in  some  special  cases  the  creditor 
'  has  been  allowed  to  bring  in  his  claim  by  petition,  in  order  that  its 
nature  and  peculiar  merits  might  be  more  particularly  set  forth ;  or 
that  he  might  be  permitted  to  assume  the  position  of  a  co-plaintiff 
before  the  decree,  so  as  to  authorize  him  to  prosecute  the  suit,  and 
to  have  a  voice  and  vote  in  the  appointment  of  a  trustee,  (c)  And 
there  are  instances  in  which  the  creditors  have  been  called  in  be- 
fore a  decree,  in  order  to  ascertain  the  amount  necessary  to  be 
raised  by  a  sale  of  the  real  estate. (<:?)     But  with  these  exceptions 

(a)  The  Case  of  the  Creditors  of  Sir  C.  Cox,  3  P.  Will.  343.— (6)  2  Harr.  Pra. 
Chan.  36;  2  Fow.  Ex.  Pra.  252;  Hardcastle  v.  Chettle,  4  Brow.  c.  c.  163. 

(c)  McMECHZiV  V.  Chase. — This  was  a  suit  instituted  by  a  creditor  of  a  deceased 
debtor  against  his  heirs  to  have  his  real  estate  sold  for  the  payment  of  his  debts. — In 
which  suit  Elizabeth  Edwards,  by  petition,  setting  forth,  that  her  testator  was  a 
creditor  of  the  deceased,  prayed  to  be  admitted  as  a  co-plaintiff,  so  as  to  come  in, 
participate,  Stc. 

1st  October,  1816. — Kilty,  Chancellor.  —  The  prayer  of  the  above  petition  is 
granted. 

After  which  there  was  a  decree  for  a  sale,  under  which  a  sale  was  made  and  con- 
firmed ;  and  sundry  other  proceedings  were  had,  when  the  case  was  brought  before 
the  court. 

6th  November,  1820. — Kilty,  Chancellor. — I  consider  the  practice,  as  to  tlie  act  of 
limitations,  to  be  similar  to  that  of  the  courts  of  law.  If  the  defendant,  in  his  answer, 
contests  the  claim  in  any  other  manner,  without  pleading,  or  relying  on  the  act,  he 
cannot  afterwards  resort  to  that  defence.  Claims  filed,  on  the  sale  of  a  real  estate, 
by  creditors,  not  originally  parties,  are  subject  to  be  contested  by  the  heire ;  not 
usually  by  answer,  but  by  some  written  notice  of  their  defence.  A  defence  was  made 
in  writing  to  this  claim,  on  the  part  of  the  heirs,  on  the  10th  of  February,  1818; 
after  which  witnesses  were  produced,  on  both  sides,  and  proceedings  were  had  before 
the  auditor.  The  plea,-now  relied  on,  was  filed  on  the  10th  of  December,  1819,  and 
cannot  be  admitted. 

(d)  CoRRiE  V.  Clarke. — This  was  a  creditor's  bill  filed  on  22d  April,  1800.  It  begins 
thus  :  "  The  bill  of  complaint  of  James  Corxie,  administrator  of  John  Corrie,  and  in 
his  own  right,  in  behalf  of  himself,  his  intestate's  estate,  and  others  the  creditors  of 
Parrott  Clarke,  late  of  Caroline  county,  deceased,  sheweth  that  the  said,"  &c.  &c. 

19/A  May,  1802. — Hanson,  Chancellor. — Ordered,  that  the  creditors  of  the  said 
PaiTott  Clarke,  by  the  publication  of  this  order,  at  least  three  times  before  the  16tli 
day  of  June  next,  in  the  Easton  newspaper,  be  notified  to  bring  into  tliis  court  their 


86  STRIKE'S  CASE. 

the  course  has  been  for  the  creditors  to  come  in  by  filing  the  vouch- 
ers of  their  claims,  in  the  Chanceiy  office ;  and  this  may  be 
regarded  as  the  present  well  established  practice  of  this  court.  In 
this  form  a  creditor  may  come  in  at  any  time  before  a  distribution 
of  the  proceeds  of  the  sale  has  been  actually  made ;  and  before 
a  final  audit  has  been  ordered  and  ratified ;  but  if  the  auditor  had 
previously  made  a  statement,  the  cost  of  the  restatement  must  be 
borne  exclusively  by  such  new  applicant,  (e) 

respective  claims,  with  the  vouchers  thereof,  on  or  before  the  16th  day  of  August 
next,  to  the  intent,  that  there  may  be  ascertained  the  sum  necessary  to  be  raised  by  a 
sale  of  the  real  estate  of  the  deceased  for  the  payment  of  his  just  debts. 


After  which  tlie  case  came  on  for  a  final  hearing. 

4th  January,  1803. — Hanson,  Chancellor. — The  complainants'  claim  against  tlie 
said  Parrott  Clarke,  deceased,  being  established  to  the  satisfaction  of  the  Chancellor ; 
and  it  appearing,  that  the  personal  estate  of  tlie  said  Parrott  Clarke  is  insufficient  for 
the  payment  of  his  debts — decreed,  that  the  lands  be  sold,  &.c. 


A  sale  of  the  real  estate  was  made,  reported,  and  finally  ratified  accordingly.  A 
commission  had  been  issued  in  the  usual  form,  to  appoint  a  guardian  to  the  infant 
defendants,  and  such  a  guardian  had  been  appointed  accordingly,  who  answered  for 
them. 

23d  ^itg:ust,  1S03. — Hanson,  Chancellor.  —  Ordered,  that  the  principal  money, 
arising  from  the  sale  of  the  estate  of  Parrott  Clarke,  deceased,  be  applied  agreeably 
to  the  auditor's  statement  of  the  12th  instant ;  and,  that  whatever  interest  is  paid  by 
the  purchaser  shall  be  divided,  in  due  proportion,  amongst  the  persons  entitled  to  the 
principal.  But,  inasmuch  as  the  Chancellor  knows  not  whether  the  heirs  of  said 
Clarke  are  of  years  of  discretion,  or  have  a  guardian  to  their  persons  and  estate,  the 
balance  of  £  143  2s.  Id.,  must  be  subject  to  the  Chancellor's  future  order. 

(c)  Angell  V.  Haddon,  1  Mad.  Rep.  523 ;  2  Fow.  Ex.  Pra.  254 ;  Davies  v.  Stewart, 
per  Johnson,  Chancellor,  17th  February,  1823. 

O'Crian  v.  Bennet. — This  bill  was  ^led  by  O'Brian  and  wife  on  the  18th  of 
June,  1800 ;  by  which  it  appears,  that  the  defendant  Pouder,  being  seized  in  fee 
simple  of  a  lot  of  ground  in  Baltimore,  sold  it  to  Francis  Caskey  for  £687  10s.,  and 
gave  Caskey  his  bond  to  convey  it  to  him  when  he  paid  the  whole  purchase  money ; 
that  Caskey  paid  £337  10s.  in  part;  that  afterwards  he  mortgaged  his  interest  for  a 
certain  sum  of  money  to  the  defendant  Patrick  Bennet ;  after  which  Caskey  devised 
his  interest  to  Martha,  one  of  the  plaintiffs ;  and  died.  And  tlien  the  defendant  Pouder 
conveyed  all  his  right  to  the  defendant  Bennet — that  Bennet  holds  possession  and 
refuses  to  coaivey,  or  to  suffer  the  plaintiffs  to  redeem.    Prayer  for  general  relief,  &c. 

On  the  27th  January,  1802,  a  decree  was  passed,  by  consent,  for  a  sale  in  the  com- 
mon form.  The  amount  due  Bennet,  was  also  agreed  by  writing,  dated  8th  October, 
1801.  A  sale  was  made  and  reported  accordingly,  which,  by  an  order  of  the  19th  of 
May,  1802,  was  at  once  absolutely  ratified,  the  persons  concerned  having  expressed 
their  approbation  thereof — that  is,  the  plaintiffs  and  defendants. 

The  property  having  sold  for  more  than  enough  to  satisfy  tlie  claims  of  the  defend- 
ants, the  plaintiff  Charles  O'Brian,  by  his  petition,  stated,  that  he  having  been  ap- 
pointed the  executor  of  Charles  Caskey,  as  set  forth  in  the  bill,  had  obtained  letters 
testaicentary ;  that  the  personal  estate  of  Caskey  was  exhausted ;  that  he  had  been 


STRIKE'S  CASE.  87 

With  regard  to  tlie  proof  of  claims,  brought  in  by  other  credit- 
ors, it  has  been  the  practice  in  cases  of  deceased  persons'  estates, 

sued  and  was  likely  to  be  made  liable  for  a  large  amount  of  debts ;  and  therefore 
prayed  thai  the  surplus  of  the  proceeds  of  sales  in  this  case  might  be  paid  over  to  him 
as  executor. 

9th  June,  1802. — Hanson,  Chancellor. — Ordered,  that  the  creditors  of  Francis 
Caskey,  deceased,  be  notified  by  a  publication  of  this  order  three  Tuesdays  or  Fridays 
in  the  Baltimore  Telegraph,  before  the  end  of  tlie  present  month,  to  exhibit  their 
claims,  with  the  vouchers  thereof,  to  the  Chancellor,  before  the  first  day  of  Septem- 
ber next ;  in  order,  that  after  that  day  a  dividend  may  be  made  emiongst  the  said 
creditors  of  about  £  600,  arising  from  the  sale  of  certain  property,  mortgaged  by  the 
said  Caskey,  over  and  beyond  the  mortgage  debt  and  costs,  &,c. 


After  which,  Bernard  Caskey,  as  creditor  of  Francis  Caskey,  deceased,  by  a  peti- 
tion, prayed  to  have  his  claim  discharged  out  of  the  surplus  remaining  after  dis- 
charging the  mortgage. 

16ih  October,  1802. — Hanson,  Chancellor. — Ordered,  that  the  trustee  for  the  said 
sale,  by  publishing  this  order  three  Tuesdays  or  three  Fridays  in  the  Baltimore  Tele- 
graph, before  the  15th  day  of  November  next,  do  give  notice  to  the  creditors  of  the 
said  Francis  Caskey,  deceased,  to  exhibit  their  claims,  with  the  vouchers  thereof,  to 
the  Chancellor,  before  the  first  day  of  February  next,  to  the  intent  that  a  fair  dividend 
of  the  said  surplus  may  be  made  amongst  the  just  creditors  of  the  said  deceased. 


This  order  was  published,  and,  in  consequence  thereof,  several  creditors  exhibited 
their  claims,  an  account  of  all  which  was  stated  by  the  auditor. 

IZih  February,  1803. — Hanson,  Chancellor. — Ordered,  that  the  money  arising  from 
the  sale  of  the  estate  of  Francis  Caskey,  be  applied  according  to  the  auditor's  state- 
ment filed  on  the  11th  instant;  and  that  the  balance  of  £328  Os.  3d:  be  paid  to 
Charles  O'Brian  and  wife. 


After  this,  on  the  Ist  of  March,  1803,  William  Richardson,  by  his  petition,  stated, 
that  the  late  Francis  Cjiskey  was  indebted  to  him,  the  vouchers  of  which  he  filed, 
being  short  copies  of  judgments  obtained  by  Bernard  Caskey,  against  the  plaintiff, 
Charles  O'Brian,  as  administrator  of  F.  Caskey,  a  part  of  which  were  assigned  to 
the  petitioner,  and  the  surplus  stiU  remained  in  the  hands  of  the  trustee,  who  was 
apprised  of  this  application,  and  would  not  pay  over  the  proceedsj  until-  this  claim 
was  acted  upon.     Prayer  that  the  claim  be  allowed. 

IM  March,  1803. — Hanson,  Chancellor. — In  this  case,  the  Chancellor  has  passed  an 
order  for  discharging  the  claims  which  had  been  filed  and  passed,  and  for  the  residue 
of  the  money  arising  from  the  sale  to  be  paid  to  Charles  O'Brian  and  wife. 

It  seems,  this  order  has  not  been  fiilly  complied  with,  and  this  day,  for  the  first 
time,  claims  are  exhibited,  with  a  prayer,  that  they  be  discharged  by  an  application 
of  the  said  residue.  The  Chancellor  being  satisfied  of  the  justness  of  the  said  claims, 
cannot  do  otherwise  than  direct  an  application  accordingly.  And,  had  the  said  claims 
been  exhibited  in  due  time,  no  order  would  have  been  passed,  as  aforesaid,  in  favour 
of  O'Brian  and  wife.  It  is  well,  that  an  application  is  made  before  the  money  is 
paid  under  that  order.  But  had  the  money  been  so  paid,  no  blame  could  attach  to 
the  court  or  to  the  register. 

The  Chancellor  regrets,  that  he  feels  himself  compelled,  by  a  paper  which  has  met 
his  eye,  to  make  certain  remarks,  which,  at  firet  sight,  may  appear  unnecessary,  if 
not  improper.  There  is  not  the  slightest  reason  for  him  to  believe,  that  the  aforesaid 
claims  were  ever  before  this  day  received  into  the  olficc.     It  is  far  more  probable. 


S8  STRIKE'S  CASE. 

to  require  no  higher  proof  than  such  as  would  induce  the  Orphans 
Court  to  allow  the  claim  according  to  the  testamentary  system,  in 
case  no  objections  were  made.  Because  there  being  no  other  mode 
by  which  the  real  estate  of  a  deceased  debtor  can  be  subjected  to 
the  payment  of  his  debts  generally,  including  those  due  by  simple 
contract,  than  by  bill  in  chancery,  the  decree  in  such  cases  for- 
merly expressly  declared,  that  the  real  estate  should  be  sold  "  for 
the  payment  of  the  just  claims  of  the  creditors  of  the  deceased  in 
a  due  course  of  administration,"  and  the  law  required,  that  the  real 
assets  should  be  paid  by  the  heir  or  devisee  in  the  same  order  as 
the  personalty  was  directed  to  be  administered  by  the  executor  or 
administrator ;{/)  therefore,  this  court  has  felt  itself  authorized  and 
required  to  make  a  distribution  of  the  real  assets  upon  the  same 
grade  of  proof,  and  in  the  same  order,  as  has  been  prescribed  by  law 
for  authenticating  and  paying  claims  against  the  personal  estate  be- 
fore the  Orphans  Court. (g)  So  that  the  same  claim,  whether  made 
against  the  personalty  or  the  realty,  or  whether  presented  to  one 
tribunal  or  another,  should,  as  to  the  mode  of  authentication,  be 
governed  by  the  same  rule ;  and  I  find  this  practice  spoken  of  as 
far  back  as  the  year  1803,  as  then  well  established,  (/i) 

that,  being  either  put  into  the  mail,  or  enclosed  in  a  letter  to  be  delivered  by  a 
private  hand,  they  never  reached  the  office,  than  it  is,  that  the  register,  having 
received,  cai'elessly  lost  or  mislaid  them. 

It  is  injurious  to  the  Chancellor  to  allege,  tliat  a  claim  with  proper  vouchers,  filed 
in  this  court,  cannot  be  established  without  the  aid  of  counsel.  Any  man,  attending 
to  the  proceedings  of  tliis  court,  might  itnow,  that  all  claims  for  money,  arising  irom 
sales  under  a  decree  of  this  court,  are  either  examined  in  the  first  instance  by  the 
Chancellor,  or  submitted  to,  and  reported  on  by  the  auditor;  and  that  counsel  ai-e 
rarely,  if  ever,  employed  to  support  any  claim,  except  those  claims  which  are  dis- 
puted, and  which  are  not,  in  the  first  instance,  supported  by  proper  proofs  or  vouchers. 

The  Chancellor  has  made  those  remarks ;  because  he  conceives,  that  it  cannot  be 
improper  for  any  "man,  or  body  of  men,  by  a  plain  declaration,  to  reftite  a  calumny, 
which,  (if  unnoticed,)  might  produce  disagreeable,  mischeivous  consequences. 

It  is  ordered,  that  of  the  money  arising  from  the  sale,  in  this  cause,  heretofore 
directed  to  be  paid  to  O'Brian  and  wife,  there  be  paid  to  Bernard  Caskey,  the  princi- 
pal sum  of  seventy  five  pounds,  with  interest  thereon,  from  the  12th  day  of  April 
last,  until  payment  by  the  purchaser.  And,  that  there  be  paid  to  William  Richardson 
the  sum  of  one  hundred  and  seventy  seven  pounds,  seven  shillings,  and  nine  pence, 
with  interest  as  aforesaid ;  and  that,  unless  a  further  claim,  or  claims,  be  preferred 
before  the  balance  be  paid  to  O'Brian  and  wife,  in  whose  hands,  money  arising  from 
the  sale  aforesaid,  would  have  been  answerable,  &,c. 

(/)  178i5,  ch.  80,  s.  7. 

(i?)  179S,  ch.  101,  sub  ch.  9. 

(h)  Ringgold  v.  Jones. — This  was  a  creditors'  suit  instituted  on  tlie  21st  of  No- 
vember, 1799,  by  William  Ring£;;old,  and  others,  in  behalf  of  themselves  and  othei-s, 
tlie  creditors  of  \\  illiam  Sluby,  deceased,  against  Jones  and  others,  his  executor  and 


STRIKE'S  CASE.  gg 

In  cases  of  insolvency,  under  the  acts  of  Assembly  which  for- 
merly referred  such  matters  to  the  Chancellor,  it  was  the  practice 

devisees.  The  answer  of  the  executor  admitted  the  total  insufficienc}-  of  the  personal 
assets.  The  otlier  answers  were  to  the  same  elrect ;  and  on  the  2d  July,  ISOl,  a 
decree  was  passed,  ordering  a  sale  of  the  real  estate  in  the  usual  form. 

It  appears  that  Benjamin  R.  Morgan,  another  creditor,  came  in  by  filing  the  voucher 
of  his  claim,  which  the  auditor,  by  his  report  of  the  22d  June,  1802,  declared  to  be 
wholly  inadmissible.  After  which,  Morgan  filed  his  petition,  praying,  that  the  Chan- 
cellor would  take  the  subject  into  his  consideration,  and  give  such  directions  to  the 
auditor,  as  he  thought  proper.  On  the  25th  IVovember,  1502,  Morgan,  by  petition, 
prayed  for  further  time  to  produce  satisfactory  proof  of  his  claim  ;  and  the  Chancel- 
lor appointed  a  day  for  hearing,  &,c.  On  the  12th  February,  1803,  William  Ringgold, 
and  also  James  Ringgold,  two  of  the  originally  suing  creditors,  by  petition,  objected 
to  the  allowance  of  the  claim  of  Morgan ;  because  it  was  founded  on  a  partner- 
ship transaction,  which  had  been  settled,  and  that  tlie  claim  had  been  paid :  and  on 
the  30th  of  April  following,  one  of  them,  James  Ringgold,  filed  sundiy  objections  to 
Morgan's  claim,  the  first  of  which  is  thus  expressed  :  "  That  the  same  is  for  a  balance 
stated  to  be  due  on  a  partnership  between  the  said  parties,  ending  in  the  year  1774, 
which  ought  not  to  be  allowed,  on  account  of  the  lapse  of  time,  and  being  unsettled 
by  the  parties  themselves,  is  exhibited  by  the  executor,  [B.  R.  Morgan,]  of  one  part- 
ner against  the  real  estate  of  the  other,  where  the  creditors  of  Sluby  have  no  oppor- 
tunity, by  producing  his  books,  to  invalidate  the  same." 

2d  May,  1803. — Hansox,  Chancellor, — Benjamin  Morgan  having  exhibited  a  claim 
against  the  said  Sluby *s  estate,  which  the  auditor  of  this  court  rejected,  the  Chancel- 
lor, on  application  of  one  of  the  said  Sluby's  creditors,  passed  an  order,  declaring, 
that  on  the  24th  of  April  last,  he  would,  on  application,  decide  on  the  said  claim, 
provided  notice,  &c.  &.c.  Notice  has  been  acknowledged  by  Morgan's  solicitor,  who 
appearing,  here  produces  no  proof  or  voucher,  to  establish  the  claim  heretofore  made  ; 
but  prays  further  time,  and  instructions  from  tlie  Chancellor;  and  an  order  for  the 
producing  of  books,  &.e. 

It  is  certain,  that  at  the  time  of  passing  the  last  order  for  deciding,  Sec,  it  was  the 
chancellor's  intent,  and  it  was  so  understood,  as  it  seems,  by  the  said  solicitor,  and 
the  creditor,  that  the  aforesaid  claim  should,  at  the  time  appointed,  be  decided  on, 
and  the  applicant  aforesaid  unite  in  the  decision's  taking  place. 

The  act  of  1785,  ch.  72,  has  been  always  understood,  as  directing  the  lands  of  a 
deceased  debtor,  who  devises,  or  suffers  his  real  estate  to  descend  to  an  infant  or 
infants,  to  be  sold  under  the  authority  of  this  court,  in  aid  of  the  defective  personal 
estate,  to  pay  the  debts  of  the  deceased  which  are  established  to  the  Chancellor's 
satisfaction.  No  mode  is  prescribed  by  the  act  for  establishing  the  debts.  It  is  left 
entirely  to  the  Chancellor's  discretion  ;  but  he  has  observed,  it  is  a  rule  to  admit  claims 
on  such  proof  as  is  prescribed  for,  and  is  satisfactory  to  an  Orphans  Court,  and  even 
to  admit  claims,  passed  against  an  executor  or  administrator,  by  an  Orphans  Court, 
unless  objected  to  by  some  person  interested,  viz. :  by  a  creditor  of  the  deceased,  or 
his  executor  or  administrator,  or  by  the  guardian  of  the  infants. 

When  claims  are  objected  to  on  one  part,  and  persisted  in  on  the  other  part,  the 
question  is,  in  what  manner  shall  it  be  tried  ?  If  every  disputed  claim  should  be 
directed  to  be  tried  by  a  jury,  very  considerable  expense  might,  in  many  instances, 
be  incurred  ;  and  the  fund,  for  the  payment  of  just  debts,  would  become  inadequate, 
or  the  infants  might  be  impoverished.  The  Chancellor  has  never  thought  it  neces- 
sary, or  indeed  proper,  in  the  case  of  any  disputed  claims  against  a  deceased  person, 
to  send  out  an  issue,  or  to  refer  the  party  to  an  action  at  law.  Indeed  it  would  be 
difficult,  in  most  cases,  to  ascertain  the  proper  parties  for  an  issue.    The  executor  or 

12 


90  STRIKE'S  CASE. 

to  consider  the  insolvent's  schedule,  or  his  voluntary  admission,  as 
sufficient  evidence  of  the  debt ;  or  if  the  insolvent  was  dead,  then 

administrator  surely  would  not  be  compelled,  without  being  a  party,  to  act  as  defend- 
ant on  the  trial  of  the  issue.  However,  in  all  cases  where  a  claim  depends  on  a 
single  fact,  or  facts,  strongly  litigated,  and  of  ditficult  investigation,  the  Chancellor 
conceives,  that  in  some  manner  an  issue  ought  to  be  tiied.  For  instance,  a  bond  is 
exhibited  with  an  affidavit  of  no  payment,  &c. ;  payment  is  alleged;  but  no  receipt 
is  produced ;  or  if  a  receipt  be  prothiced,  there  is  an  allegation  of  forgery.  In  such 
a  case,  an  issue  may  be  sent  out  to  be  tried  between  the  claimant  and  the  pjirty 
alleging ;  if  the  said  party  chooses  to  be  considered  as  plaintiff  on  the  trial  of  the 
issue. 

In  the  present  case,  the  claimant  has  filed  an  account  with  an  affirmation  of  the 
truth  of  the  account.  The  person  taking  the  affirmation  has  not  certified  the  affirm- 
ant to  be  a  Quaker,  Menonist,  Tunker,  Nicolite,  or  other  person,  entitled  by  law  to 
have  his  affirmation  to  be  on  a  footing  with  an  affidavit  by  a  common  person.  Of 
course,  the  affirmation  is  to  stand  lor  nothing. 

The  petitioner,  Benjamin  Morgan,  has  supposed  the  objection  to  his  claim  is,  that 
his  account  is  not  regularly  stated.  He  is  mistaken.  The  objection  is,  that  he  has 
no  proofs  or  vouchers  to  establish  any  claim  against  the  deceased.  He  claims,  as  the 
representative  of  a  partner  with  the  deceased.  He  charges  the  deceased  with  all 
goods  sent  to  him,  and  gives  no  credit,  unless  for  remittances  in  money,  or  other 
things.  The  balance  he  considers  as  the  sum  to  him  due ;  or  if  he  and  the  deceased 
were  partners,  he  considers  himself  entitled  to  one  half  of  the  balance.  His  account 
resembles  little  a  partnership  account.  A  and  B  are  partners.  A  sends  £,  10,000 
worth  of  goods  to  B,  who  remits  to  him  £3,000.  Can  it  be  supposed,  that  merely 
from  this,  B  owes  £2,000  to  the  partnership;  and  of  course  owes  £1,000  to  B? 
No !  The  charges  of  the  store  are  to  be  taken  into  the  account.  There  may  be  losses 
of  the  articles,  or  they  may  have  been  sold  for  less  than  was  expected ;  or  they  may 
have  been  sold  for  a  great  profit.  In  fact  B  was  only  to  credit  the  company  with  the 
sale  of  the  articles,  and  to  charge  every  expense  of  storekeeping ;  and  if  there  was 
a  balance  in  favour  of  the  partnei-ship,  that  is  to  say,  if,  after  deducting  all  expenses 
the  sale  of  the  goods  amounted  to  not  more  tlian  £  10,000,  it  is  impossible  that  B. 
shall  be  in  debt  to  A. 

The  claimant,  Morgan,  has,  by  his  petition,  requested  the  Chancellor,  to  instruct  the 
auditor  with  respect  to  the  mode  of  stating  the  account.  What  can  the  Chancellor 
do  more,  if  he  shall  direct  tlie  auditor,  than  order  him  to  state  the  account,  as  other 
accounts  are  stated  ?  The  auditor's  objection  to  the  account,  was  not  merely  as  to 
the  mode.  The  auditor  was  of  opinion,  tliat  an  account  charging  the  goods  sent  to 
Sluby,  and  crediting  him  only  with  v^'hat  he  sent  to  Morgan,  could  not  possibly  be  a 
just  statement  of  a  partnership  account. 

Morgan,  by  his  petition,  requests  an  order  for  the  production  of  books  in  general. 
Perhaps  the  law,  usage,  or  practice  of  this  court,  respecting  the  production  of  books, 
is  less  understood,  in  general,  than  any  part  of  the  jurisdiction  of  tiiis  court.  The 
power  of  ordering  books,  has  ever,  as  it  ought  to  be,  been  exercised  with  great  cau- 
tion. No  instance  can  be  shewn,  where  a  man  has  been  considered  as  entitled  to 
the  production  of  private  books,  in  xvhich  he  has  not  an  interest.  And  in  all  cases 
where  books  have  been  ordered  to  be  produced,  the  particular  books  have  been  speci- 
fied ;  and  the  court  has  been  first  satisfied  of  the  necessity  of  producing  them.  But, 
in  no  instance  has  a  man,  who  is  not  a  party  to  a  suit,  been  compelled  to  produce 
private  books.  Is  it  conceivable,  that  Morgan,  exhibiting  a  claim  against  Sluby,  in 
a  summary  way,  without  filing  a  bill  against  any  person  whatever,  is  entitled  to  an 
order  against  every  person  whom  he  alleges  to  have  in  his  possession  certain  boolcs 


STRIKE'S  CASE.  gj 

such  proof  as  was  admitted  to  sustain  claims  against  deceased  per- 
sons' estates.  But,  if  the  insolvent  denied  the  debt,  or  there  was 
.  any  discrepancy  between  his  schedule  or  admission  and  the  credit- 
or's claim,  then  the  creditor  was  put  to  full  proof. (i)  But  the  sta- 
tute of  limitations  was  never  considered  as  an  objection  to  the 
payment  of  a  claim,  either  in  the  case  of  a  deceased  person's 
estate,  or  in  the  case  of  insolvency,  unless  it  was  specially  relied 
upon.  The  case  now  under  consideration  is  substantially  and  in 
truth,  a  case  of  insolvency ;  not,  indeed,  referred  to  the  Chancellor 
by  any  special  act  of  Assembly,  but  one  which  has  been  brought 
here  by  these  proceedings,  and  in  due  course  of  law ;  and,  there- 
fore, the  assets  now  here  will  be  distributed  upon  such  principles 
and  proof  as  have  been  applied  and  required  in  similar  cases, 
where  no  objection  to  the  claim  has  been  made. 

But  the  originally  suing  creditors  have  objected,  that  the  claims 
of  the  other  creditors,  who  have  come  in  since  the  institution  of 
the  suit,  are  not  sufficiently  sustained  by  proof;  they  have  also 
objected  that  those  claims  are  barred  by  the  statute  of  limitations ; 
and  their  reliance  on  the  statute  was  made,  and  sent  with  the 
reference  of  the  case  to  the  auditor.  The  reply  to  these  objections, 
in  argument,  is,  that  they  are  such  as  can  only  be  made  by 
one  or  other,  or  both  of  the  defendants ;  and  not  by  a  creditor 
or  co-plaintiff. 

The  debtor  or  his  heir,  has  so  manifest  an  interest  in  the  real 
estate  which  it  is  proposed,  in  cases  of  this  sort,  to  subject  to  the 
payment  of  his  debts,  that  there  never  seems  to  have  been  any 
difference  of  opinion  as  to  his  right  to  make  such  objections. 
Where  an  executor  or  administrator  fails  to  make  such  objections, 

which  may  throw  li2;ht  on  the  subject  ?  Suppose  an  order  on  A  B,  to  produce  books, 
without  any  specification,  and  the  order  not  complied  with,  by  producing  any  books 
whatever.  Is  A  B  instantly  liable  to  aUachment?  It  would  be  ridiculous  to  suppose 
it.  The  fact  is,  that  no  man  has  a  right  to  the  production  of  another's  books ;  and 
every  man  may  do  as  he  pleases  with  his  own  books.  Each  partner,  indeed,  is  enti- 
tled to  the  benefit  of  all  books  kept  by  the  partnership.  But  then  the  person  in  whose 
possession  they  are,  must,  in  some  way,  be  made  a  party  to  a  suit,  before  they  can 
be  ordered  to  be  produced. 

It  appears  to  the  Chancellor,  that  the  utmost  he  can  grant  to  Benjamin  Morgan,  is 
llirther  time  for  establishing  his  claim ;  and  that  the  Chancellor  cannot,  in  this  case, 
with  propriety,  for  the  reasons  herein  assigned,  direct  any  issue,  or  issues  to  be  tried. 
It  is,  onthe  whole,  ordered  in  the  presence,  or  with  the  assent  of  Morgan's  solicitor, 
that  he  be  allowed  until  the  first  day  of  July  next,  to  produce  his  vouchers,  and  have 
his  account  against  Sluby,  (if  any  just  account  he  hatli,)  stated  by  the  auditor  of 
this  court. 

(0  1  Ev.  Poth.  Obi.  409. 


92  STRIKE'S  CASE. 

or  vraives  them,  or  there  has  been  a  judgment  against  him ;  still 
the  heir  or  devisee  may  make  such  objections  in  defence  of  the 
real  assets.  And  where  the  executor  and  some  of  the  heirs  waive 
them ;  yet,  any  other  of  the  heirs  or  devisees  may  alone  make 
them  in  defence  of  the  whole  of  the  real  assets,  as  was  done 
in  the  case  of  Wm.  Frazierh  estate  in  this  court.(j)     It  seems  to 

( /)  Edmondson  v.  Frazier. — This  bill  was  brought  by  creditors  to  subject 
the  real  estate  of  the  deceased  debtor  to  the  payment  of  his  debts.  The  estate  was 
sold  accordingly  under  a  decree  in  the  usual  form.  The  auditor,  in  his  report  of  the 
29th  January,  1822,  saj-s,  "  the  act  of  limitations,  which,  as  a  bar  to  the  creditors' 
claims,  is  relied  upon  by  the  distributees  only,  the  auditor  is  not  satisfied  they  are 
entitled,  under  the  circumstances,  to  the  benefit  of  it."  This  report  was  excepted 
to  by  the  distributees  on  this  and  other  accounts. 

10th  ^pril,  1822. — Johxson,  Chancellor. — Exceptions  to  the  auditor's  report  are 
filed.  The  complainants  except  to  that  part  of  the  auditor's  report  unfavorable  to 
the  claim  of  Nicholas  Hammond,  which  claim  is  founded  on  a  bond  executed  by  one 
John  Mace,  and  William  Frazier,  the  above  deceased,  as  securitv^  The  auditor,  in 
conformity  with  the  usual  course  of  the  court,  would  not  allow  the  claim  without 
evidence  to  establish  the  allegation  in  the  bill,  that  INIace,  the  principal  debtor,  was 
insolvent.  A  court  of  equity  when  it  interposes,  and  adjusts  the  relative  obligations 
of  contracts  and  agieements  in  which  more  than  two  parties  are  concerned,  calls 
them  all  before  the  court;  that  a  complete  and  final  adjustment  may  take  place,  and 
each  be  compelled  to  pay  his  just  portion ;  and  thereby  the  creditor  draws  from 
each,  being  solvent,  what  equitably  ought  finally  to  be  drawn  from  him.  It  will  not 
compel  the  one,  both  of  the  debtors  being  solvent,  to  pay  the  whole,  and  turn  him 
over  to  his  co-security  to  restore  the  one  half.  When,  therefore,  estates  are  sold  to 
pay  debts,  and  in  which  the'  interests  of  minors  are  generally  deeply  involved,  it 
becomes  the  duty  of  the  court,  to  see,  that  no  claim  be  allowed,  in  which  the 
deceased,  with  others,  stands  indebted,  without  satisfactory  proof  being  produced, 
that  the  other  persons  joined  in  the  obligation  were  insolvent.  But  as  that  proof  is 
now  produced  in  support  of  the  claim  No.  4,  the  same  is  hereby  allowed,  and  the 
trustee  is  directed  to  pay  tlie  same,  with  a  due  portion  of  the  interest  received,  or 
that  shall  be  received. 

Exceptions  are  filed  on  the  behalf  of  Wm.  R.  Stewart  and  wife,  of  Samuel  Wright 
and  Mary  Elizabeth  Wright,  to  the  claim  distinguished  by  No.  3.  This  claim,  by 
the  answer  of  those  who  are  only  interested  in  its  rejection,  under  the  decree,  is 
strongly  contested,  and  the  act  of  limitations  relied  on  as  a  bar  to  the  recovery.  The 
answer  of  one  defendant,  in  chancery,  can  never  implicate  the  interest  of  a  co- 
defendant  ;  but  more  especially,  when  the  person,  so  answering,  is  not  interested  in 
the  matter  in  controversy.  The  answer,  therefore,  of  Win.  Steward's  (Frazier's) 
widow,  and  executrix,  who  had  exhausted  the  personal  funds,  never  can  be  received 
to  charge  the  real.  They  can  only  be  affected  by  the  answer  of  those  interested  in 
them,  or  by  the  exhibition  of  such  proofs  as  will  bind  them.  The  claim  No.  3,  rests 
on  a  bond  dated  7th  February,  1790 ;  and  on  an  open  account,  about  the  same  time. 
The  bill  in  this  cause  was  filed  on  23d  October,  1815,  more  than  twenty-five  years 
after  the  bond ;  which  was  made  payable  forthwith  A  sufficient  length  of  lime  has 
elapsed  to  presume  payment.  Nor  is  there  any  evidence  in  the  cause  to  remove  the 
presumption.  The  exception  taken  to  the  claim  No.  3,  is  therefore  supported,  and 
the  claim  is  hereby  rejected.  The  auditor  is  directed  to  re-state  the  account,  rejecting 
the  said  claim. 


STRIKE'S  CASE.  93 

be  conceded  on  all  hands,  that  these  originally  suing  creditors  have 
an  interest  in  these  real  assets  ;  but,  yet  it  is  urged,  that  they  can- 
not make  such  objections  as  these  against  the  claims  of  their  fellow 
creditors.  This  matter  must  be  determined  by  practice,  on  prin- 
ciple, and  on  authorit}\ 

The  defendants,  or  the  representatives  of  deceased  debtors,  are 
generally,  from  strong  motives  of  interest,  so  ver}'-  active  in  their 
opposition  to  all  and  each  of  the  creditors,  where  opposition  can 
avail,  that  they  rarely  leave  any  thing  to  be  said  or  done  by  any 
one  else  ;  and  hence,  it  would  seem,  from  the  practice  of  the  court, 
that  they  were  the  only  persons  who  had  any  right  to  urge  such 
objections.  It  is  obvious,  therefore,  that  the  main  current  of  the 
practice  here  is  not  likely  to  be  very  fruitful  of  information  on 
this  subject: 

There  is  a  class  of  creditors'  bills  common  in  England,  but  of 
rare  occurrence  here,  which  will  cast  light  upon  this  matter.  Bills 
are  often  brought  there  by  one  creditor  in  behalf  of  himself  and 
others,  against  executors  to  obtain  payment,  and  to  have  the  assets 
brought  in  and  administered  under  the  directions  of  the  Court  of 
Chancery,  (/c)  In  such  cases  the  executor  is  not  bound  to  plead  the 
statute  of  limitations ;  and  if  he  does  not,  the  creditors  will  have 
a  decree,  and  be  paid.  But  it  is  the  constant  course,  in  the  mas- 
ter's office,  to  take  the  objections  against  other  creditors,  and  to 
exclude  from  distribution  those,  who,  if  legal  objections  are  brought 
forward,  cannot  make  their  claims  effectual.  So  too,  in  cases  of 
bankruptcy — if  the  bankrupt  waives  any  objection,  it  may  still  be 
made  by  the  creditors ;  and  the  reason  of  this  is,  that  the  creditors 
have  a  direct  and  manifest  interest  in  the  funds,  and  that  it  should 
satisfy  their  whole  claims  respectively.  If  each  of  them  was  not 
permitted  to  make  these  objections,  they  would  be  left  at  the  mercy 
of  those,  for  a  full  defence,  who,  in  all  cases,  where  the  fund  is  not 
more  than  enough  to  pay  all  the  debts,  have  no  interest  in  exclud- 
ing any  one  from  partaking,  to  their  prejudice,  in  the  distribution, 
however  ill-founded  his  claim  may  be.  And  besides,  such  pro- 
ceedings in  chancery,  are  only  to  be  considered  as  other  modes  of 
compelling  payment ;  and  the  Chancellor  is  understood,  in  the  dis- 
tribution, to  govern  himself  as  to  legal  debts  by  the  rules  of  law ; 
and  as  to  equitable  debts,  by  the  rules  of  equity,  regarding  the 
claim  of  each  creditor  as  a  suit  depending ;  and  hence,  if  the 

(fc)  1  Mad.  Chan.  57S. 


94  STRIKE'S  CASE. 

€xecutor  or  bankrupt  fails  to  object  or  to  plead  the  statute  of  limita- 
tions, it  may  be  made  or  relied  upon  by  any  of  the  creditors  ;  and 
the  validity  of  such  objections  will  sometimes  be  directed  to  be 
tried  on  an  issue  at  law.(/«:) 

In  this  State,  similar  principles  have  been  held,  and  sanctioned 
in  the  case  of  William  Sluby^s  estate  : — in  that  case,  Chancellor 
Hanson  observes,  in  speaking  of  the  liability  of  the  real  estates 
of  deceased  persons  to  be  sold  for  the  payment  of  their  debts, 
under  the  act  of  1785,  ch.  72,  that  "  no  mode  is  prescribed  by  the 
act  for  establishing  the  debts.  It  is  left  entirely  to  the  Chancellor's 
discretion.  But,  (he  observes,)  it  is  a  rule  to  admit  claims  on 
such  proof  as  is  prescribed  for,  and  is  satisfactory  to  an  Orphans 
Court ;  and  even  to  admit  claims  passed  against  an  executor  or 
administrator  by  an  Orphans  Court,  unless  objected  to  by  some 
person  interested,  viz.  by  a  creditor  of  the  deceased,  or  his  executor 
or  administrator ;  or  by  the  guardian  of  the  infant."  The  chan- 
cellor then  goes  on  to  speak  of  the  manner  in  which  such  objec- 
tions should  be  tried ;  and  in  substance  declares,  that  he  would  not 
direct  an  issue  at  law  for  that  purpose,  but  in  extraordinary  case?.(^) 
.  There  can  be  no  difference,  in  point  of  equity,  between  the  case 
of  a  creditor's  bill  against  a  deceased  person's  estate,  and  a  creditor's 
bill,  as  in  this  instance,  against  an  insolvent's  estate.  Therefore, 
upon  principle  and  authority,  it  is  competent  for  these  originally 
suing  creditors  to  make  these  objections,  and  to  rely  upon  the 
statute  of  limitations,  in  opposition  to  these  claims  of  the  other 
creditors  who  have  come  in  since  the  institution  of  this  suit.  But 
in  applying  the  statute  of  limitations  in  such  cases,  it  must  be  with 
all  its  saving  provisoes  ;  and  also  subject  to  the  resuscitating  quali- 
fications of  such  acknowledgments  as  are  deemed  sufficient  to  take 
a  case  out  of  the  statute ;  of  which  a  statement  in  an  insolvent's 
schedule  may  be  considered  as  one,  where  the  claim  and  schedule 
agree.  And  the  statute,  as  in  other  cases,  must  be  allowed  to 
commence  its  operation  from  the  time  the  debt  accrued ;  and  to 
run  on  until  the  creditor  came  in,  by  filing  his  petition,  or  the 
voucher  of  his  claim. 

The  plaintiffs,  by  their  bill,  found  their  claim  against  the  defend- 
ants, upon  contracts   made   with  Henderson  Sf  Rogers ;   and  the 

(A-)  Ex  parte  Dcwdney,  15  Ves.  497;  Jolliffe  r.  Pitt  &  Whistler,  2  Vern.  691; 
GiifordiJ.  Hart,  1  Scho.  &.  Lefr.  409;  Civil  Code  Napol.  art.  2225.— (0  Ringgold 
V.  Jones,  ante,  88,  note  ;  Edmondson  v.  Frazier,  ante,  92,  note ;  Shewcn  v.  Vander- 
horst,  1  Russ.  &,  Myl.  347 ;  S.  C.  2  Russ.  &  Myl.  75. 


STRIKE'S  CASE.  95 

decree  of  May,  1822,  recognises  and  affirms  their  claims  of  that 
description ;  and  the  proofs  derived  from  competent  witnesses, 
will  enable  the  auditor,  in  fulfilment  of  that  decree,  to  refer  to  the 
notes  and  vouchers,  to  ascertain  the  amount,  and  to  compute  the 
interest  thereon. 

But,  it  would  be  altogether  without  precedent  to  allow  a  plaintiff 
to  split  up  his  claim  into  parcels,  and  to  bring  separate  suits  for 
each,  or  after  he  had  obtained  a  decree  to  add  to  the  amount,  and 
to  eke  out  his  claim  indefinitely,  by  introducing  other  particulars, 
and  causes  of  action  of  a  diflerent  description,  not  mentioned 
or  alluded  to  in  the  pleadings,  or  sanctioned  by  the  decree,  and 
which  were  only  noticed  in  the  depositions  of  some  of  the  wit- 
nesses ;  or  to  bring  in  any  additional  claim  by  a  mere  ex  parte 
petition,  filed  after  the  hearing  and  decree.  If  the  plaintiffs  had 
other  claims  than  those  mentioned  in  the  pleadings,  subsisting  at 
the  time  of  filing  their  bill,  which  might  have  been  included 
therein,  they  should  have  had  their  bill  so  amended  as  to  have 
embraced  them,  and  thereby  enabled  the  opposite  party  to  gainsay 
them  if  he  could : — therefore  the  account  of  the  plaintiffs  with 
John  Rogers  alone,  and  also  their  claim  for  costs  in  the  suit  against 
Penelope  D.  Price,  must  both  be  rejected. (7?i) 

The  claim  of  the  solicitors,  Murray  and  Rogers,  which  appears 
to  have  been  partially  sanctioned  by  the  order  of  the  9th  of  January, 
1824,  may  be  considered  as  somewhat  in  the  nature  of  costs  ;  and 
it  having  been  placed  by  the  auditor's  report  before  the  party's 
other  counsel,  and  all  concerned,  and  no  objection  having  been 
made,  it  would  seem  now  to  be  proper  to  allow  it  entire ;  and  it 
may  be  so  stated  by  the  auditor. 

There  is  no  evidence,  derivable  fi-om  any  competent  source,  going 
to  show,  that  the  complainants  ever  received  the  money  said  to  be 
due  on  the  bonds  of  a  Doctor  Harsnip,  which  were  said  to  have  been 
in  their  hands  and  others : — any  discount  or  deduction  from  the 
claim  of  the  complainants,  on  that  account,  must  therefore  be 
rejected  by  the  auditor. 

According  to  the  established  usage  and  practice  of  the  court,  as 
has  been  explained,  there  are  but  two  modes  by  which  other  cre- 
ditors can  be  permitted  to  come  in  and  participate,  in  cases  of  this 
sort  ;  they  are  either  by  petition,  or  by  filing  the  vouchers  of  their 

(m)  Spra^^  v.  Birkes,  5  Ves.  589 ;  5  Bac.  Abr.  668  ;  Purefoy  v.  Purefoy,  1  Vern. 
29  ;  Hutson  v.  Lowry  &  Neville,  2  Virg.  Cases,  42 ;  1825,  ch.  167 ;  Wallis  v.  Saville^ 
2  Lutw.  1536. 


96  STRIKE'S  CASE, 

claims.  But  the  filing  of  the  schedule  of  an  insolvent  debtor, 
certainly  cannot,  by  any  strained  or  liberal  construction  of  this 
practice,  be  considered  as  the  filing  of  the  vouchers  of  the  claims 
of  all,  or  any  of  those  creditors,  whose  names  and  claims  are 
stated  thereon  ;  and,  laying  aside  the  insolvent's  schedule  in  this 
case,  as  furnishing  no  evidence  of  the  intention  of  any  creditor 
therein  named,  to  come  in  and  make  a  claim  for  any  debt,  which 
he  alleged,  and  was  ready  to  prove  was  due  him,  when  such  sche- 
dule was  filed,  there  are  but  two  other  creditors,  w^ho  have  made 
any  show  of  coming  in  as  other  creditors  of  Rogers ;  and  they 
are,  Robert  Taylor,  and  the  firm  of  Hollmgsworth  Sf  Worthington. 
Taylor  has  filed  a  mere  short  copy  of  a  judgment,  which  he  obtained 
in  Baltimore  County  Court  against  Henderson,  the  partner  of  Rogers  ; 
and  Hollingsworth  ^-  Worthington  merely  say,  that  the  only  demand 
they  now  have  against  Rogers,  is  for  twenty  dollars,  lent  him  seve- 
ral years  ago  : — but  these  claims  are  so  utterly  destitute  of  any 
support,  by  proof  of  any  sort,  that  they  must  be  rejected.  There 
are  then,  in  fact,  no  claims  of  any  other  creditors  of  the  defendant 
Rogers,  which  the  auditor  can  be  allowed  to  state  and  report  for 
confirmation. 

Upon  the  principles  before  explained.  Strike  must  be  charged 
with  the  rents  and  profits,  or  full  value  of  the  propert}^-  in  question, 
from  the  date  of  the  deeds  from  Rogers  to  him,  to  the  day  of  the 
sale  by  the  trustee.  The  amount,  or  what  has  been  the  full  value 
during  that  time,  must  be  collected  and  ascertained  by  the.  auditor 
from  the  proofs  in  the  cause ;  and,  for  the  reasons  already  given, 
Strike's  claim  for  repairs,  improvements,  and  advances,  must  be 
totally  rejected. 

The  practice  in  the  Chancery  Court  of  this  State,  is  wholly 
unlike  that  in  the  Chancery  Court  of  England,  in  relation  to  excep- 
tions to  the  depositions  of  witnesses.  Here,  the  testimony  having 
been  taken  publicly  before  the  commissioners,(7i)  there  is  no  formal 
order  or  rule  for  the  publication  of  it,  as  in  England ;  but  w^hen  the 
commission  is  returned,  it  is  opened  by  the  chancellor  or  the  regis- 
ter, and  objections  of  every  kind  to  the  testimony,  are  taken  and 
considered  at  the  hearing  of  the  cause.  In  this  case  objections 
have  been  made  to  the  reading  of  the  depositions  of  two  of  the 
witnesses,  on  the  ground  of  their  being  interested.  The  proofs 
are  all  now  to  be  sent  to  the  auditor,  upon  which  he  is  to  found 
some  of  the  particulars  of  the  account  he  is  directed  to  state.  But 

(n)  17S5,  ch.  72,  s.  14. 


STRIKE'S  CASE,  ,  97 

he  should  not  be  sufFered  to  raake  any  statements  derived  from  the 
testimony  of  incompetent  witnesses  or  illegal  evidence.  Therefore 
these  objections  do  not  come  now  too  late,  and  must  be  decided  on 
for  the  government  of  the  auditor. 

The  Chancellor  considers  it  as  sufficiently  apparent,  upon  the 
proceedings,  without  going  into  a  statement  of  the  case,  and  his  rea- 
sons, that  John  Rogers,  the  defendant,  is  an  interested  witness ; 
and  therefore,  the  whole  of  his  testimony  must  be  rejected. (0) 
The  reading  of  the  deposition  of  Alexander  Irvine,  has  also  been 
objected  to,  on  the  ground  of  his  interest.  It  does  not,  however, 
sufficiently  appear,  that  he  was  a  creditor  of  Rogers,  and  inter- 
ested at  the  time ;  and  therefore  the  objection  to  his  testimony 
must  be  overruled.  A  paper  purporting  to  be  the  answer  of 
Strike  to  a  petition  of  the  complainants  filed  in  Baltimore  County 
Court  against  him,  has  been  insisted  on  as  applicable  and  furnish- 
ing evidence  pertinent  to  this  case.  But  from  its  phraseology 
and  general  tenor,  it  is  evident,  that  it  cannbt  be  a  part  of  the 
pleadings  in  this  suit ;  and  without  the  other  proceedings,  to  which 
it  purports  to  be  an  answer,  it  cannot  be  evidence  in  this  cause,  and 
must  be  rejected. 

With  these  explanations,  determinations  and  directions,  the  case 
is  referred  to  the  auditor  to  state  an  account  accordingly ;  and 
the  several  exceptions,  as  well  of  the  plaintiffs  as  of  the  defend- 
ants, to  the  auditor's  statements  and  reports  heretofore  made,  so 
far  as  the  same  are  inconsistent  with  the  determinations  and  direc- 
tions herein  before  given,  are  overruled,  and  so  far  as  they  may 
agree  therewith,  are  sustained. 


The  complainants  afterwards  filed  a  petition  stating,  that  they 
originally  employed  as  their  counsel  Henry  M.  Murray  and  Henry 
W.  Rogers,  and  agreed  with  them,  in  case  of  the  successful  ter- 
mination of  this  case,  by  a  final  decree  against  Strike  in  this  court, 
to  pay  them  ten  per  cent,  each,  on  the  amount  of  the  proceeds  of 
the  suit,  as  a  compensation  for  their  services,  subject  to  a  deduc- 
tion of  whatever  moneys  should  be  paid  to  them  in  the  mean  time, 
on  the  account  of  this  suit ;  and  that  after  the  interlocutory  decree 
was  obtained,  Murray  and  Rogers  applied  to  Baltimore  County 
Court  to  fix  their  per  centage  on  the  amount  then  received  by  the 
sale  under  the  decree,  while  this  suit  was  pending  there,  which 

(0)  Murray  v.  Shadwell,  2  Ves.  &c  Bea.  401. 

13 


98  STRIKE'S  CASE. 

was  allowed  by  that  court,  under  the  impression,  that  those  genfle- 
men  were  to  proceed  in  the  case  to  a  final  decree ;  upon  which  con- 
dition alone,  was  the  per  centage  to  be  allowed.  The  petitioners 
further  stated,  that  Henry  M.  Murray,  soon  after  that  order  was 
passed,  died,  without  proceeding  further  in  the  case,  after  the  audi- 
tor's first  report  therein,  and  the  petitioners  have,  in  place  of  Mur- 
ray, been  compelled  to  engage  Charles  Mitchell  as  their  counsel, 
who  has  attended  to  the  same  since ;  and  the  petitioners  had  alone 
borne  all  the  expenses  of  the  suit.  Wherefore  they  prayed,  that 
the  same  per  centage,  in  proportion  to  his  services,  might  be 
allowed  to  Charles  Mitchell,  as  was  to  be  allowed  to  Henry  M. 
Murray,  if  he  had  lived,  to  be  ascertained  by  this  court,  subject 
to  a  like  deduction  therefrom,  of  the  money  advanced  by  the  com- 
plainants to  him  during  the  progress  of  this  suit,  or  that  this  court 
would  be  pleased  to  prevent  any  further  burthen  of  the  counsel- 
fees  in  this  case  upon  the  petitioners,  but  that  the  fund  may  con- 
tribute thereto,  under  the  agreement  aforesaid. 

11th  April,  1826. — Bland,  Chancellor. — The  Chancellor  has 
read  and  considered  the  foregoing  petition.  No  objection  was  inti- 
mated to  him,  against  the  claim  of  Henry  M.  Murray,  until  after  the 
argument,  and  the  Chancellor  was  engaged  in  deliberating  upon 
and  maturing  those  directions,  with  which  this  case  has  been  lately 
sent  to  the  auditor.  The  Chancellor  knows  of  no  practice  of  this 
court,  or  of  any  analogous  proceeding  of  the  English  court,  which 
would  authorize  the  introduction  of  claims  of  this  sort  into  a  cause, 
depending  or  about  to  be  finally  disposed  of.  The  claim  of  the 
solicitors,  Rogers  and  Murray,  he  sanctioned  under  all  the  very 
peculiar  circumstances  which  belonged  to  it,  and  he  considers  the 
objections  to  it,  stated  in  the  foregoing  petition,  as  coming  now  too 
late.  The  claim  has  been  acquiesced  in,  and  could  not  now  be 
reconsidered  without  giving  H.  M.  Murray''s  representatives  an 
opportunity  of  being  heard,  which  cannot  now  be  done.  The 
Chancellor  must  in  all  cases  leave  the  contracts  between  solicitors 
and  suitors,  relative  to  professional  services,  to  be  settled  and 
decided  upon  in  like  manner  as  all  other  contracts.  They 
cannot,  and  ought  not,  to  be  introduced  into,  and  blended  with 
any  pending  suit.  Therefore  this  petition  must  be,  and  is 
hereby  dismissed  with  costs. 


On  the  4tli  of  May,  1826,  the  auditor  reported,  that  in  obedi- 
ence to  the  order  of  the  10th  of  April  last,  he  had  re-stated  the 


STRIKE'S  CASE.  99 

account  between  the  estate  oi  John  Rogers  and  the  trustees,  apply- 
ing therein  the  proceeds  of  sale,  to  the  payment  of  the  trustees' 
commission  and  expenses ;  the  complainants'  costs  in  Baltimore 
County  Court ;  the  costs  of  this  audit,  arid  the  fees  allowed  to 
H.  W.  Rogers  and  H.  M.  Murray ;  and  the  balance  of  the  said  pro- 
ceeds, then  remaining,  to  the  payment  of  part  of  the  complainants' 
claim  allowed.  By  this  account,  the  complainants'  claim,  exclusive 
of  the  allowance  to  their  solicitors,  amounts  to  -  -  $8657  81 
Proceeds  of  sale  applicable  to  the  payment  thereof  -  2750  80 
Leaving  a  balance  due  the  complainants  of  -  -  -  $5907  01 
as  of  the  day  of  the  trustees'  sale.  He  has  also  stated  an  account 
between  Strike  and  the  estate  of  John  Rogers,  in  which  he  has 
charged  Strike  with  the  full  value  of  the  rents  and  profits  of  the 
property  conveyed  to  him  by  Rogers,  rejecting  entirely  Strikers 
claim  for  advances  in  payment  of  taxes,  ground-rents,  &c.  and  has 
also  charged  him  with  interest  thereon  up  to  the  day  of  the  trustees' 
sale.  This  account  makes  Strike  indebted  in  the  sum  of  $6559  33, 
with  farther  interest  on  $4967  63  from  the  day  of  sale  ;  an  amount 
more  than  sufficient  to  discharge  the  balance  of  the  complainants' 
claim  unprovided  for  by  the  account  between  the  estate  of  John 
Rogers  and  the  trustees. 

To  this  report  the  defendant.  Strike,  excepted,  1st,  for,  that  the 
auditor  has  rejected  entirely  the  claim  of  the  defendant.  Strike. 

2d.  Because  Strike  claims  the  whole  proceeds  of  the  said  sales 
of  the  said  property,  mentioned  in  the  trustees'  report,  statement 
and  proceedings,  in  preference  to  all  the  other  claims  in  the  said 
cause;  and  will  contend  that  he  is  so  entitled. 

3d.  Because  the  auditor  has  charged  the  defendant.  Strike,  with 
the  full  value  of  the  rents  and  profits  of  the  property  conveyed  to 
him  by  Rogers,  rejecting  entirely  Strikers  claim ;  and  because  the 
said  rents  are  charged  higher  than  is  warranted  in  the  proof  of  the 
cause. 

4th.  Because  the  auditor  should  have  allowed  the  defendant, 
Strike,  his  advances  in  payment  of  taxes,  ground-rent,  and  the 
sum  assessed  for  the  extension  of  Pratt-street ;  which  he  has  not 
done. 

5th.  Because  the  auditor  should  have  allowed  the  defendant, 
Strike,  for  all  permanent  and  necessary  improvements,  laid  out  and 
expended,  and  created  on  said  lots  ;  which  he  has  not  done. 

6th.  Because  the  auditor  has  charged  the  defendant,  Strike,  with 
interest  on  the  rents  and  profits  of  said  property  to  the  day  of  the 


100  STRIKE'S  CASE. 

trustees'  sale,  which  makes  Strike  indebted  in  the  sum  of  $6559  33, 
with  further  interest  on  $4967  63,  from  tlic  day  of  sale  ;  which  he 
ought  not  to  have  done. 

7th.  Because  Strike  is  charged  with  the  ground-rent  upon  the 
lot  on  Prait-street,  running  to  WId&key-alley ;  which  he  ought  not 
to  have  been. 

8th.  Because,  in  the  said  account  and  report,  an  allowance  is 
made  to  //.  W.  Rogers  and  Henry  M.  Murray^  esqr's.  for  fees ; 
and  also  an  allowance  for  expenses  incurred  by  creditors  at  the 
private  meetings,  to  consult  about  their  private  affairs. 

9th.  Because  the  said  statement  of  account  and  report  is  erro- 
neous in  point  of  fact  and  law^,  and  contrary  to  equity  and  right. 

loth  May,  1826. — Bland,  Chancellor. — This  case  having  been 
submitted  upon  the  auditor's  report,  and  the  exceptions  of  Nicholas 
Strike  thereto,  without  argument,  the  proceedings  were  read  and 
considered. 

Whereupon,  it  is  ordered,  that  the  said  exceptions  to  the  said 
report,  made  and  filed  by  the  auditor  on  the  4th  instant,  are  hereby 
overruled ;  that  the  said  report  and  statements  of  the  auditor  be, 
and  they  are  hereby  ratified  and  confirmed,  and  that  the  trustees 
apply  the  proceeds  accordingly,  with  the  interest  that  has  been  or 
may  be  received.  And  it  Is  further  ordered,  that  Strike,  one  of  the 
said  defendants,  forthwith  pay  unto  the  complainants  the  sum  of 
$5907  01,  together  with  interest  thereon  from  the  fourteenth  day 
of  September,  in  the  year  1822,  until  paid.  And  it  is  further 
ordered,  that  the  defendant.  Strike,  pay  unto  the  complainants,  all 
costs  which  have  not  been  stated  and  included  in  the  said  report 
of  the  auditor,  to  be  taxed  by  the  register. 


The  defendant.  Strike,  appealed  from  the  decree  of  the  28th  of 
May,  1822 ;  from  the  order  of  the  10th  of  April,  1826 ;  and  from 
the  order  of  the  15th  of  INIay,  1826 ;  and  the  Court  of  Appeals  at 
June  term  1828,  affirmed  them  all.  Strike  v.  McDonald  ^  Son, 
2  H.  &  G.  258. 


HEWITT  V.  HEWITT.  IQI 


HEWITT  V.  HEWITT. 

Cruel  and  violent  treatment  of  the  wife  by  the  husband,  and  his  refusing  to  permit 
her  to  live  mth  him  ;  held  to  be  sufficient  ground  to  direct  him  to  pay  her  a  certain 
sum  Eis  alimony ;  the  amount  to  be  adjusted  with  a  due  regard  to  his  circumstances. 
And  as  the  several  instalments  became  due,  the  payment,  on  petition  by  her,  was 
enforced  by  an  order  to  shew  cause,  followed  by  a  fieri  facias. 

This  bill  was  filed,  on  the  7th  of  October,  1825,  by  Martha 
Hewitt.,  against  Eli  Hewitt,  her  husband,  to  obtain  an  allowance 
for  alimony;  upon  the  ground,  that  he  had  treated  her  with  great 
cruelty  and  violence,  and  that  he  had  positively  refused  to  permit 
her  to  live  with  him,  or  to  provide  any  adequate  maintenance  for 
her,  although  he  had  a  large  real  and  personal  estate,  as  specified 
in  a  schedule  exhibited  with  the  bill. 

To  this  bill  the  defendant  immediately  put  in  his  answer,  admit- 
ting the  facts  as  stated;  and  it  was  agreed,  that  the  chancellor 
should  pass  such  a  decree,  as  he  might  deem  proper,  allowing 
alimony  according  to  the  schedule,  which  was  admitted  to  be  a 
correct  representation  of  the  nature  and  value  of  his  estate. (a) 

(a)  CoDD  V.  CoDD. — This  bill  was  filed,  on  the  17th  of  Februarj-,  1727,  by  Mary 
Codd,  against  her  husband  St.  Ledger  Codd,  in  which  she  stated,  that  he  had  not 
only  abused  her  with  very  opprobrious  language,  but  had  treated  her  in  an  inhuman 
and  barbarous  manner ;  that  he  had  by  his  cruel  treatment  deprived  her  of  the  use 
of  one  of  her  arms ;  and  had  abandoned  her,  leaving  her  without  support,  to  live  in 
a  manner  common  to  few  people  except  slaves  ;  and  that  he  had  altogether  refused 
to  permit  her  to  cohabit  with  him,  notwithstanding  her  most  humble  and  repeated 
solicitations.  Whereupon,  the  bill  prayed,  that  he  might  be  compelled  to  make  her 
such  an  allowance  and  maintenance  as  was  suitable  to  his  station  and  fortune,  &c. 

The  defendant,  by  his  answer,  denied  the  alleged  cruel  treatment,  and  the  havin* 
deprived  her  of  the  use  of  an  arm  ;  and  he  averred,  that  she  had  broken  open  his 
trunks  and  closets,  and  had  taken  thence  a  considerable  amount  of  personal  property 
which  she  had  sold  for  spirituous  liquor  to  drink ;  that  her  habits  Were  such,  that  he 
could  not  live  with  her ;  and  lie  had  therefore  built  for  himself  a  small  liouse  near  to 
that  in  which  he  had  formerly  lived  with  her,  and  which  he  had  left  her  still  to 
occupy  ;  and  that  he  had  been,  and  always  was  willing  to  allow  her  a  suitable  main- 
tenance ;  but  that  his  estate  was  small,  unproductive,  &c.  After  which  the  case  was 
submitted  on  bill  and  answer  alone. 

2(ith  May,  1729. — Calvert,  Chancellor. — Decreed,  That  the  defendant  pay  to  the 
complainant  ten  pounds  per  annum,  by  four  quarterly  payments ;  and  it  is  also 
decreed,  that  he  provide  her  a  house ;  and  that  the  defendant  pay  unto  the  said  com- 
plainant, all  her  costs  and  charges  by  her  in  the  said  cause  laid  out  and  expended. — 
Chancer/  Records,  Lib.  I.  R.  No.  \,pa^e  275,  280. 

Sarah  Wright's  Case.— This  appears  to  have  been  a  bill  filed  by  Sarah  Wrigfit, 
against  Blois  Wright,  her  husband,  for  alimony ;  but  as  the  original  papers  are  not  to 
be  found,  the  particulars  of  the  case  cannot  be  given. 

Zth  October,  1730.— Ogi,e,  Chincellor.— Ordered,  That  tlie  defendant  pay  to  the 


102  HEWITT  V.  HEWITT. 

10/A  October^  1825. — Bland,  Chancellor. — This  cause  standing 
ready  for  hearing,  and  being  submitted,  the  proceedings  were  read 
and  considered. 

Whereupon  it  is  decreed^  that  the  defendant,  Eli  Hewitt^  pay  unto 
the  plaintiff,  Martha  Hewitt,  or  to  her  order,  during  their  natural 
lives,  so  long  as  they  shall  live  separate  and  apart  from  each  other, 
the  annual  sum  of  three  hundred  and  fifty  dollars,  payable  half 
yearly ;  that  is  to  say,  one  hundred  and  seventy-five  dollars  on  the 
tenth  day  of  April,  and  one  hundred  and  seventy-five  dollars  on  the 
tenth  day  of  October  in  every  year ;  the  first  payment  to  be  made 
on  the  tenth  day  of  April  next ;  the  same  being  deemed  a  suita- 
ble alimony,  having  regard  to  the  circumstances  of  the  parties 
respectively,  for  her  support  and  maintenance.  And  in  case  it 
should  not  be  punctually  paid  when  demanded,  the  plaintiff  may 
apply  to  this  court  to  have  the  payment  enforced.  And  it  is  further 
ordered,  that  either  party  be  at  liberty  to  apply,  upon  any  future 
change  of  circumstances  of  the  parties,  or  either  of  them,  for  such 
variation  or  modification  of  this  decree  as  those  future  circum- 
stances may  indicate  to  be  just.  And  it  is  further  ordered,  that 
the  defendant  pay  all  costs  to  be  taxed  by  the  register. 


The  plaintiff,  by  her  petition,  stated,  that  she  still  continued  to 
live  separate  and  apart  from  her  husband ;  that  by  the  decree  in 
this  case  she  had  become  entitled  to  the  sum  of  $175,  on  the  10th 
of  April  last,  which  sum  the  defendant  had  neglected  and  refused  to 
pay:  whereupon  she  prayed,  that  he  might  be  ordered  to  pay,  &c. 

IbthMay,  1826. — Bland,  Chancellor. — Ordered,  ihsit  Eli  Hewitt 
pay  unto  Martha  Hewitt,  the  sum  of  one  hundred  and  seventy-five 
dollars  with  interest  thereon,  being  the  amount  which  became  due 
on  the  10th  of  April  last,  of  the  sum  allowed  her  as  alimony ;  or 
shew  good  cause  to  the  contrary,  on  the  15th  day  of  June  next; 


complainant  for  her  maintenance,  one  hundred  pounds  weight  of  tobacco  per 
month,  until  answer  and  further  order.  And  also  ordered,  that  attachment  issue 
for  want  of  an  answer. 


After  which,  upon  further  proceedings  being  had,  and  on  the  case  being  brought 
before  the  court  for  final  hearing : 

bill  December,  1732. — Ogle,  Chancellor. — Upon  reading  the  bill  and  answer,  and 
all  other  the  proceedings  in  this  cause,  and  upon  mature  consideration  thereupon 
had  ;  it  is  ordered,  adjudged,  and  decreed,  that  the  defendant  pay  to  the  complainant 
for  her  yearl}'  maintenance,  the  quantity  of  twelve  hundred  pounds  of  tobacco,  upoa 
the  tenth  day  of  June  yearly. —  Chanceiy  Records,  Lib.  No.  2,  page  74,  264. 


HOFFMAN  V.  JOHNSON.  103 

provided  that  a  copy  of  this  order,  together  with  a  copy  of  the  peti- 
tion, be  serA'ed  on  Eli  Hewitt,  on  or  before  the  27th  instant. 


The  plaintiff  by  her  petition  stated,  that  a  copy  had  been  served 
as  required  ;  that  the  defendant  had  failed  to  shew  cause  or  to  pay ; 
whereupon  she  prayed  for  a  fieri  facias ;  which  was  ordered 
accordingly.  The  payment  of  other  instalments  of  the  alimony 
was  enforced  in  like  manner ;  after  which  the  case  was  terminated 
by  the  death  of  the  defendant. 


HOFFMAN  V.  JOHNSON. 


The  principles  of  equity  in  relation  to  parties  standing  as  creditor,  principed  debtor, 
and  surety.  Where  evidences  of  debt  cire  received  under  an  agreement,  that  when 
paid,  they  are  to  go  in  discharge  of  so  much,  the  assignee  is  bound  to  use  due  dili- 
gence in  collecting  them ;  and  on  failing  to  do  so,  to  return  them  to  the  assignor. 

The  right  to  take  in  contiguous  vacancy  under  a  wan-ant  of  resurvey,  is  a  privilege 
incident  to  a  legal,  not  an  equitable  title.  Where  a  tract  of  land  is  sold  as  contain- 
ing so  many  acres,  more  or  less,  a  reasonable  allowance  for  small  errors,  &.c.,  is  to 
be  made.  But  where  an  allowance  may  be  claimed  for  deficiency,  it  may  be  made 
up  by  the  vendor,  by  taking  in  contiguous  vacancy  under  a  warrant  of  resurvey, 
before  he  has  parted  with  his  legal  title ;  and  the  vendee  will  be  bound  to  receive 
the  vacancy  so  added,  so  far  as  to  make  up  the  alleged  deficiency. 

It  appears,  that  Fielder  Gantt  mortgaged  two  parcels  of  land  in 
Frederick  county,  the  one  called  Foufs  Delight,  and  the  other  The 
Resurvey  on  Beauty,  to  the  late  James  Hunter,  who  afterwards  made 
his  will,  and  died ;  that  Hunter,  by  his  will,  directed  his  lands  to 
be  sold  by  his  executors,  for  the  payment  of  his  debts ;  that  his 
executors  had  the  mortgages  foreclosed,  and  afterwards  sold  those 
lands  to  George  Schnertzell,  and  gave  him  a  bond  for  a  conveyance 
on  the  payment  of  the  purchase  money ;  that  Schnertzell  sold  a 
part  to  William  Hobbs,  who  sold  it  to  John  Hoffman;  and  the 
other  part  Schnertzell  sold  to  John  Hoffman,  who  thus  obtained  a 
claim,  as  assignee  of  Schnertzell,  to  the  whole ;  that  Schnertzell 
assigned  many  notes  and  bonds,  in  part  payment,  for  which  he 
was  to  be  answerable  ;  that  the  executors  oi  Hunter  are  dead;  and 
administration  de  bonis  non  had  been  granted  on  his  estate ;  and 
that  Baker  Johnson  had  become  seized  of  the  legal  title  to  those 
lands.  Upon  which,  Hoffman,  Hobbs,  and  Schnertzell,  on  the  23d 
of  July,  1804,  filed  this  bill,  to  obtain  a  conveyance  of  the  legal 
title,  alleging,  that  the  whole  purchase  money  had  been  paid.    The 


104  HOFFMAN  V.  JOHNSON. 

other  material  facts  of  the  case,  sufficiently  appear  from  the  Chan- 
cellor's opinion.  After  several  abatements,  by  the  death  of  parties, 
the  case,  having  been  revived,  was  at  length  brought  to  a  final 
hearing. 

I8ih  July,  1826. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing,  and  no  counsel  appearing  for  the  defendants, 
the  solicitor  for  the  plaintiffs  was  heard,  and  the  proceedings  read 
and  considered. 

This  case,  as  it  now  stands,  is  much  reduced  in  compass,  but  is 
not  yet  altogether  free  from  difficulties.  The  first  inquiry  is, 
whether,  in  point  of  fact,  the  purchase  money  has  been  paid  by 
the  plaintiff  Hoffman,  or  those  under  whom  he  claims  ;  or  whether, 
according  to  the  principles  of  equity,  the  vendee  has  been  alto- 
gether discharged  from  his  responsibility,  even  although  the  pur- 
chase money  may  not  have  been  entirely  collected  and  paid. 

According  to  the  contract  between  the  parties,  the  vendor  was 
to  obtain  payment,  in  part,  by  collecting  the  amount  due  on  several 
bonds  and  notes,  assigned  to  him  on  the  23d  of  July,  1791 ;  which, 
as  was  declared  by  the  agreement,  "  when  paid  are  to  go  in  dis- 
charge of  the  amount  of  such  payments."  The  debt  due  fi'om 
Chapline,  which  was  one  of  them,  it  is  admitted,  by  a  solicitor 
of  the  defendants,  has  been  lately  collected  and  paid.  And  it  is 
proved,  or  conceded,  that  the  whole  of  the  purchase  money  has 
been  paid,  except  to  the  amount  of  the  debts  said  to  be  still  due 
from  Hole  and  from  Benner.  And  whether  or  not  these  have  been 
paid,  or  the  vendee  discharged  from  his  responsibility  for  them,  is, 
at  present,  the  whole  extent  of  the  controversy  as  regards  the  pur- 
chase money. 

The  purchaser,  in  respect  to  these  assigned  debts,  was  placed  in 
the  situation  of  a  surety,  (a)  It  will,  therefore,  be  necessary  to 
advert  to  the  general  principles  of  equity,  applicable  to  parties 
standing  in  the  relation  to  each  other,  in  which  these  did,  of  cre- 
ditor, principal  debtor,  and  surety. 

According  to  the  Roman  law,  a  surety  was  allowed  three  advan- 
tages :  1st,  he  might  compel  the  creditor  to  sue  the  principal  debtor 
first ;  2d,  the  creditor  might  be  driven  to  resort  to  each  surety  for 
his  proportional  share  only;  and  3d,  a  surety,  sued  for  the  whole 
debt,  might  demand  of  the  creditor  to  transfer  over  his  actions 
against  the  other  sureties,  before  he  was  allowed  to  recover  the 


(a)  Anstey  v.  Marden,  1  New  Rep.  124. 


HOFFMAN  V.  JOHNSON.  105 

whole  from  the  one  sued ;  that  is,  to  have  it  placed  in  his  power, 
as  far  as  practicable,  to  obtain  reimbursement,  by  being  clothed 
with  all  the  powers  of  the  creditor  and  substituted  in  his  place. (a) 
These  principles  and  privileges,  it  is  said,  have  been  substantially- 
adopted  by  all  tjie  nations  of  Europe,  of  whose  code  the  Roman 
law  forms  the  basis  ;  which  shows  that  they  accord  very  much 
with  natural  equity  and  the  common  sense  of  mankind. (6)  The 
principles  of  equity,  of  England  and  of  Maryland,  although  in  most 
respects  substantially  the  same,  are  apparently  not  so  broad  and 
indiscriminate  in  their  application. 

In  the  ordinary  case  of  a  money  bond,  there  is  no  distinction, 
upon  the  face  of  it,  between  the  principal  and  the  surety ;  who 
being  both  debtors  to  the  same  creditor ;  a  court  of  equity  will 
rarely,  if  in  any  case,  be  induced  to  make  any  distinction  between 
them,  as  regards  their  creditor.  Being  alike  his  delators,  and 
equally  bound  to  him ;  and  the  credit  having  been  given  to  them 
all  together ;  equity  never  interferes  with  such  a  contract,  so  as  to 
loosen  any  of  its  ligatures,  unless  upon  peculiar  and  strong  ground. 
Yet,  as  bet^\'een  themselves,  such  obligors,  without  prejudice  to 
their  creditor,  may  be  treated,  according  to  the  fact,  as  principal 
and  surety,  and  relieved  accordingly.  The  surety  may  come  into 
equity  to  compel  his  principal  to  relieve  him  of  his  liability  by  pay- 
ing off  the  debt ;  but  it  is  otherwise  in  the  case  of  a  bond  of 
indemnity,  the  legal  effect  of  which  is  to  protect  against  the  conse- 
quences of  future  deficiencies,  but  not  to  entitle  tlie  party  to  call 
for  anticipated  and  precautionary  payment,  by  way  of  preventing 
the  risk  of  his  being  thereafter  damnified,  (c)  Hence  it  is  evident, 
that  a  case  can  rarely  occur,  under  a  contract  in  the  form  of  a 
mere  money  bond,  where  one  of  the  obligoi-s,  who  may  be,  in  fact, 
no  more  than  a  surety,  can  be  considered  as  discharged  by  reason 
of  the  obligee's  not  proceeding  against  his  co-obligor ;  or,  merely 
because  of  the  laches  of  the  creditor,  (rf) 

The  principles  of  law  in  relation  to  negotiable  and  commercial 
paper,  have  arisen  out  of  the  peculiar  nature  and  uses  of  such  in- 
struments. It  has  been  found,  from  experience,  every  where,  that 
it  is  of  the  utmost  importance,  in  commercial  affairs,  that  the 
holder  of  such  paper  should,  without  delay,  give  every  one  who 
has  become  a  surety  or  endorser,  notice  of  its  fate.     Hence  the 

(ff)  Coop.  Just.  Inst.  612.— (6)  Hayes  i'.  Ward,  4  John.  C.  C.  133.— (c)  Antro- 
bus  V.  Davidson,  SMeriv.  57S. — (*/)  Ex  park  lluihfoitli,  10  Ves.  114;  Coop.  Just 
Inst.  462,  612. 

u 


106  HOFFMAN  V.  JOHNSON. 

holder  of  such  an  instrument  is  held  strictly  bound  to  use  due  dili- 
gence; or,  on  his  default  the  surety  or  endorser  is  discharged. 
Cases  of  this  kind  can  have  little  bearing  on  that  now  under  con- 
sideration. 

In  the  case  of  a  surety  for  the  performance  of  gers'ices  ;  as,  of 
a  penal  bond,  the  condition  of  which  is,  that  one  of  the  obligors 
shall  faithfully  perform  certain  work,  or  discharge  the  duties  of  a 
certain  station,  as  a  clerk,  or  the  like ;  no  unreasonable  tardiness, 
on  the  part  of  the  obligee,  wiU  be  tolerated.  In  such  cases,  one 
of  the  obligors  only  is  to  perform  the  service,  and  if  he  neglects 
his  duty,  the  employer  alone  can  know  it,  and  he  alone  can  give 
►notice  of  the  neglect.  Hence  it  is  evident,  that  any  unreasonable 
delay  in  making  a  claim,  or  a  long  acquiescence  in  the  nonper- 
formance of  the  services,  must  be  considered  as  a  waiver  of  the 
right  to  call  for  compensation ;  and  as  a  tacit  discharge  of  the 
surety,  whose  principal  has  been  thus  unreasonably  indulged  to  his 
prejudice.  Therefore,  in  this  class  of  cases,  the  obligee  must  use 
due  diligence  in  bringing  suit  after  the  cause  of  action  has  accrued, 
or  the  surety  will  be  discharged.(e) 

But  the  case  now  under  consideration,  belongs  to  a  different 
class.  It  is  one  of  those  where  the  debtor  places  in  the  hands,  and 
under  the  control  of  his  creditor,  the  means  of  reaching  funds, 
which  are  represented  as  available  and  adequate  to  the  satisfaction 
of  the  demand.  And  the  creditor,  by  accepting  those  means, 
tacitly  undertakes  to  use  due  diligence  in  endeavouring  to  make 
the  funds  available  ;  or  to  furnish  evidence  that  they  do  not  exist, 
by  shewing  that  there  was  nothing  in  the  hands  of  the  alleged 
holder  of  them  ;  or,  that  he  was  insolvent ;  and  also,  that,  after 
having  made  every  proper  effort  to  come  at  such  funds,  he  wall 
return  or  reassign  the  bond,  note,  or  judgment,  which  had  been 
placed  in  his  hands  for  that  purpose.  An  example  of  this  class  of 
cases  may  be  presented  in  this  form  :  A  is  indebted  to  B,  and  B 
is  indebted  to  C.  And  it  is  agreed,  that  B  shall  assign  his  claim 
upon  A,  to  C,  which,  when  paid,  is  to  go  in  discharge  of  the  debt 
due  from  B  to  C  ;  consequently,  by  this  agreement,  C  becomes  the 
creditor,  A  the  principal  debtor,  and  B  stands  as  the  surety  of  A. 
But  if  it  should  turn  out,  that  there  is  nothing  due  from  A  to  B  ;  or 
that  A  is  insolvent,  then  the  consideration  of  the  agreement  fails, 
and  B  again  becomes  a  principal  debtor  to  C. 

(c)  Coop.  Just.  Inst.  613. 


HOFFMAN  V.  JOHNSON.  107 

In  cases  of  this  sort,  the  exertion  of  every  reasonable  and  proper 
degree  of  diligence  is  within  the  express  terms  and  meaning  of 
the  contract.  And,  after  all  such  proper  efforts  have  been  made, 
before  payment  can  be  enforced  from  the  surety,  equity  and  justice 
require,  that  the  bonds,  notes,  or  judgments,  or  all  the  securities 
he  had  placed  in  the  hands  of  his  creditor,  or  enabled  him  to  pro- 
cure, should  be  returned,  or  reassigned,  so  as  to  put  it  in  the  power 
of  the  debtor  or  surety  to  obtain  reimbursement  from  the  funds 
which  he  had  represented  as  sufficient,  and  which  his  creditor  had 
shewn  that  he  was  unable  to  render  available. (/")  Such  are  the 
principles  of  equity  applicable  to  this  case :  let  us  now  review  the 
facts. 

It  appears  that  Hole's  bond  Avas  payable  on  the  23d  September, 
1786 ;  that  it  was  given  to  secure  the  payment  of  the  purchase 
money  of  a  certain  lot  of  land,  which  was  held  bound  for  the  pay- 
ment of  this  debt,  by  an  equitable  lien ;  and,  which  lien  there  is 
strong  reason  to  believe,  continued  unimpaired  dowTi  to  the  year 
1807.  At  May  term,  1793,  of  the  General  Court,  the  assignee 
obtained  judgment  against  Hole  on  this  bond  ;  on  which  judgment 
a  ca.  sa.  was  issued,  returnable  to  May  term,  1794,  and  there  the 
judicial  proceedings  appear  to  have  ended.  Hole  petitioned  for 
the  benefit  of  the  insolvent  law,  in  April,  1794;  yet,  it  does  not 
appear  that  he  obtained  a  complete  discharge  under  any  insolvent 
law  until  1802.  Not  even  an  offer  has  been  made  by  the  holder  of 
this  bond,  given  by  Hole,  at  any  time,  to  return  it,  or  to  transfer 
the  judgment  obtained  on  it  to  the  vendee.  From  all  these  circum- 
stances it  is  considered,  that  the  vendee  is  entirely  discharged  from 
all  responsibility  for  this  debt  of  Holers.  If  it  has  been  lost,  it  has 
been  owing  to  the  laches  of  the  vendor ;  and,  therefore,  the  vendee 
ought  not  any  longer  to  be  held  answerable. 

The  bond  of  William  Benner,  it  appears,  became  due  on  the 
1st  of  January,  1786  ;  and  he  died  on  the  10th  August,  1793.  It 
was  generally  reported,  that  he  was,  shortly  before  his  death, 
entirely  insolvent ;  but  that  he  left  some  personal  estate,  is  certain. 
The  vendor  or  assignee,  brought  suit  on  his  bond,  and  obtained 
judgment  against  him,  in  the  General  Court,  in  May,  1793,  on 
which  a  ca.  sa.  was  issued,  returnable  to  October,  1793.     From 


(/)  Kearslake  v.  Morgan,  5  T.  R.  513;  King  r.  Baldwin,  17  John.  Rep.  381; 
Hayes  v.  Ward,  4  John.  C.  C.  123  ;  Eddowcs  v.  Niell,  4  Ball.  133 ;  Clark  v.  Young, 
1  Cran.  192;  Harris  v.  Johnston,  3  Cran.  311 ;  Exparie  Mure,  2  Cox.  63 ;  Williams  X. 
Price,  1  Sim.  &  Stu.  581. 


108  HOFFMAN  V.  JOHNSON. 

thenceforward,  as  to  this  claim,  the  proofs  are  silent.  There  has 
been  no  offer  to  return  this  bond  of  Benner^s,  or  to  assign  the  judg- 
ment against  him  to  the  vendee.  From  the  lapse  of  time  and  all 
other  circumstances,  it  may  be  presumed  that  this  debt  has  been 
satisfied;  or,  if  not,  that  it  has  been  owing  to  the  laches  of  the 
vendor ;  and,  therefore,  in  this  instance,  also,  the  vendee  is  entirely 
discharged  from  all  further  responsibility. 

Upon  the  whole,  it  thus  appears,  that  the  entire  amount  of  the 
purchase  money  has  been  paid,  or  discharged  in  the  manner  agreed 
upon.  And  here  this  case  might  be  closed,  were  it  not,  that  the 
vendor,  since  he  entered  into  this  contract,  has  made  a  resurvey 
of  these  tracts  of  land,  and  included  contiguous  A-acancy ;  and, 
that  the  vendee  claims  an  allowance  for  deficiency  in  quantity. 
These  matters  must  be  disposed  of;  and  they  have  presented  the 
principal  difficulties  in  the  case. 

Shall  not  this  resurvey,  made  by  the  vendor,  at  his  own  expense, 
after  entering  into  this  contract,  enure,  in  all  respects,  to  the  benefit 
of  the  vendee  ?  Shall  the  claim  of  the  vendee  for  an  allowance  for 
deficiency  be  sustained  to  the  full  amount,  notwithstanding  it  has 
been  made  up,  in  part,  by  contiguous  vacancy  included  imder  the 
warrant  of  resurvey  ?  and,  shall  the  vendor  be  now  called  on  to 
refund,  to  the  amount  of  the  deficiency,  not  so  made  up  by  conti- 
guous vacancy,  after  the  purchase  money  has  been  paid?  The 
answers  to  these  questions  must  be  deduced  from  the  peculiar  rules 
of  our  law  relative  to  real  estate.  It  does  not  appear,  that  these 
questions  have  ever  before  been  presented  for  judicial  investigation ; 
the  Chancellor  is,  therefore,  without  the  aid  of  precedent. 

In  this  case  the  vendor,  by  his  bond,  dated  23d  July,  1791, 
binds  himself  to  convey  to  the  vendee  "  the  tracts  or  parcels  of 
land  called  Foufs  Delight j  and  The  Resurvey  on  Beauty,  containing 
four  hundred  and  twenty-four  and  an  half  acres  of  land,  more  or 
less."  By  a  resurs^ey,  made  in  April,  1792,  these  tracts  w^ere 
found  to  contain  together  no  more  than  384  acres ;  but,  by  that 
resurvey,  eighteen  acres  of  contiguous  vacahcy  were  included, 
making,  in  all,  402  acres  in  this  resurveyed  tract  which  was  called 
"  The  Reunion,''''  leaving  a  deficiency  of  222  acres,  including  the 
vacancy ;  and  of  40^  acres,  if  that  addition  is  to  be  rejected.  The 
claim  for  an  allowance  for  deficiency  was  first  made  by  the  supple- 
mental bill,  filed  on  the  15th  of  August,  1821 ;  and,  it  is  there 
made  and  designated  by  a  reference  to  this  return  on  the  warrant 
of  resurvey  executed  by  and  at  the  expense  of  the  vendor. 


HOFFMAN  V.  JOHNSON.  109 

Where  lands  are  sold  by  metes  and  bounds,  or  in  a  body,  by  a 
designated  name,  number,  or  lot,  without  reference  to  quantity,  in 
such  cases,  according  to  the  English  authorities  and  our  own,  no 
allowance  is  made  for  any  deficiency ;  unless  on  the  ground  of 
fraud,  or  misrepresentation.  And  where  lands  are  sold  by  measure- 
ment, or  by  the  acre,  no  mere  question  as  to  the  deficiency  can 
arise.  But  where,  as  in  this  instance,  the  specified  tract  is  stated 
to  contain  so  many  acres,  more  or  less,  difficulties  often  arise  as  to 
the  claim  of  an  allowance  for  deficiency.  The  precise  meaning  of 
the  words  "  more  or  less,^^  has  been  fixed  by  no  decisions ;  but  the 
better  opinion  seems  to  be,  that  they  should  be  restricted  to  a  rea- 
sonable allowance  for  small  errors  in  surveys,  and  for  variations  in 
instruments.  Something,  too,  will  depend  on  the  proportion  the 
deficiency  bears  to  the  whole  tract.  It  seems  to  be  difficult  to  fix 
a  positive  rule.(o-)  But  it  is  considered,  that  under  all  circum- 
stances, this  is  a  case  in  which  there  is  a  fair  ground  for  presenting 
such  a  claim  for  deficiency ;  and  therefore  it  must  be  investigated 
and  decided. 

It  has  been  long  settled,  that  everj^  patent  grant  for  land,  from 
the  State  to  an  individual,  binds  the  State  to  warrant  and  assure  to 
the  grantee,-  and  those  who  claim  under  him,  that  the  tract  described 
shall  contain  the  number  of  acres  specified.  The  remuneration  for 
deficiency  in  quantity  is  not,  however,  pecuniary, (A)  or  made  by 

(g)  Townshend  v.  Stanjroom,  6  Yes.  340  ;  Winch  v.  Winchester,  1  Ves.  &  Bea. 
375 ;  1  Pow.  Cont.  375  ;  Land  Hold.  Assis.  253 ;  Nelson  v.  Matthews,  2  Hen.  & 
Mun.  164;  Duval  v.  Ross,  2  Mun.  290. 

MuRDOCK  V.  Beall. — This  was  a  creditor's  bill,  filed  on  the  7th  of  May,  1799,  to 
have  the  real  estate  of  Samuel  Beall,  deceased,  sold  to  pay  his  debts.  Sde  decreed 
and  made.  The  tnistee  reported,  that  he  had  sold  the  tract  of  land  called  Exchange, 
supposed  to  contain  82Si  acres,  more  or  less ;  that  soon  after  the  sale,  it  w"as  discov- 
ered, that  Walter  Beall,  who  had  conveyed  to  Samuel  Beall,  had  retained  fiftj'  acres, 
for  which  he  had  made  an  allowance  to  the  purchaser ;  but,  that  the  purchaser  had 
caused  the  land  to  be  sun'eyed,  and  had  discovered,  that,  in  the  residue,  there  was  a 
deficiency  of  nine  and  a  quarter  acres,  for  which  he  claimed  an  allowance.  Upon 
these  facts  the  case  was  submitted. 

17ih  February,  1S04- — Hanson,  Chancellor. — As  the  whole  of  Exchange  was 
intended  to  be  sold,  and  afterwards  a  discovery  Avas  made,  that  fifty  acres  thereof  had 
been  retained  by  Walter  Beall,  it  was  proper  in  the  trustee  to  make  tlie  purchaser  an 
allowance  for  the  said  fifty  acres ;  because  the  deficiency  was  not  of  quantity,  but  in 
Exchange  there  was  a  defect  of  title.  But,  as  to  the  nine  and  a  quarter  acres  deficiency 
in  quantity,  the  Chancellor  is  clearly  of  opinion,  that  the  purchaser  is  Hot  entitled  to 
an  allowance  for  that  deficiency ;  and  not  being  entitled  to  that  allowance,  he  cannot 
possibly  be  entitled  to  an  allowance  for  the  expense  to  which  he  has  voluntarily  put 
himself  to  shew  the  deficiency. 

(A)  LandH-'    *"=-    '^\ 


no  HOFFMAN  V.  JOHNSON, 

refunding  the  purchase  money ;  but  it  is  made  in  kind,  in  other 
land  warrants,  or  by  an  authority  to  take  other  vacant  lands  any 
where  to  the  amount  of  the  deficiency,  (z)  This  warranty,  or 
implied  covenant,  passes  with  the  legal  title  of  the  grantee  to  his 
assignee,  and  all  those  who  hold  the  legal  title  under  him ;  and  is 
never  extinguished  until,  after  the  amount  of  the  deficiency  hav- 
ing been  ascertained,  the  legal  holder  has  been  satisfied  by  obtain- 
ing other  land  warrants,  or  has  actually  included  other  vacant  land 
equal  in  quantity  to  the  deficiency.  Any  legal  holder,  in  order  to 
ascertain  the  existence  and  extent  of  this  claim  against  the  State, 
may,  of  right,  obtain  from  the  land  office  a  warrant  of  resurv^ey ; 
and  take  in  any  vacant  land  immediately  contiguous  to  the  original 
tract.  The  deficiency,  thus  ascertained,  is  directly  set  off,  in  the 
land  office,  against  the  vacancy  included;  and,  if  the  vacancy 
amounts  to  as  much,  or  to  more  than  the  deficiency,  the  claim 
against  the  State  is  fully  satisfied ;  but  if  less,  then  it  is  only  satis- 
fied in  part. (J) 

In  these  respects  this  general,  but  implied  warrantry  in  every 
patent  grant  from  the  State,  must  be  regarded  as  a  peculiar,  and 
beneficial  incident,  and  privilege  beginning,  and  associated  with 
the  legal  title  of  the  original  grantee,  and  following  that  legal  title 
firom  him  to  all  others,  who  claim  under  him,  until  it  has  been  sepa- 
rated, and  complete  satisfaction  has  been  obtained  by  a  holder  of 
the  legal  title,  (/c) 

In  this  case,  these  tracts  of  land  were  deficient  in  quantity,  and 
this  incidental  claim  against  the  State,  and  the  privilege  of  includ- 
ing contiguous  vacancy,  subsisted  in  full  force  at  the  time  the  con- 
tract was  entered  into  between  these  parties.  The  vendor  stipulated 
to  make  a  good  and  legal  title  to  these  tracts ;  tacitly,  but  clearly, 
including  all  incidents  and  privileges  associated  with  the  legal  title. 
The  vendor  cannot  be  allowed  to  withhold  any,  then  subsisting, 
beneficial  incident  to  the  legal  title  ;  nor  can  the  vendee  be  allowed 
to  relieve  himself  from  any  burthen  or  responsibility  by  rejecting 
any  incident  to  the  title  he  contracted  to  receive. 

It  is  one  of  the  chief  purposes  of  a  warrant  of  resurvey,  issuing 
from  the  land  office,  to  ascertain  the  existence  and  extent  of  this 
implied  warranty  ;  and,  where  a  deficiency  exists,  to  make  it  up 
by  taking  in  contiguous  vacancy.  It  is  true,  that  under  such  a 
warrant,  the  party  may  take  in  any  contiguous  vacancy,  not  only 

(t)  Land  Hoi.  Assis.  473.— (j)  Land  Hoi.  Assis.  319,  46S,  480,  &c.— (/c)  Land  Hoi. 
Assis.  153. 


HOFFMAN  V.  JOHNSON.  m 

to  the  amount  of  the  deficiency  in  the  original  ti'act,  but  to  a  much 
greater  extent.  Whether  the  vendor  can  be  permitted,  considera- 
bly, or  in  any  degree,  to  enlarge  the  tract  of  land  by  a  resurvey  after 
the  contract  of  sale  is  entered  into,  and  can  compel  the  purchaser 
to  take  and  pay  for  such  addition,  is  another  and  a  ver}'  different 
question  from  that  under  consideration ;  and  one  which  it  will  not 
now  be  necessary  to  determine. 

But,  in  this  case,  the  vendor,  after  ascertaining  the  deficiency, 
has  supplied  it,  only  in  part,  by  the  addition  of  contiguous  vacancy.-. 
This  mode  of  making  up  the  deficiency  subsisted  as  an  incident  to 
the  legal  title  at  the  time  the  contract  was  entered  into  by  these 
parties.  The  vendee,  therefore,  cannot  be  now  permitted  to  reject 
this  incident,  and  claim  a  deduction  for  these  acres  of  vacancy, 
leaving  the  vendor  to  hold  them  as  his  separate  estate.  If  the 
vendor  were  not  allowed,  in  this  way,  to  make  up  the  deficiency, 
then  the  vendee  would  obtain  the  original  tract  together  with,  or 
divested  of  this  privilege  of  including  these  eighteen  acres  of  con- 
tiguous vacancy.  In  the  first  case,  he  might  obtain  them,  by 
means  of  his  legal  title,  without  paying  for  them ;  or  on  the  other 
hand,  the  vendor  might  have  cast  upon  him  a  small  inconvenient 
scrap  of  land,  which,  fi'om  its  situation,  would  be  alike  unsaleable 
and  unprofitable,  unless  in  connexion  with  one  or  other  of  the 
immediately  adjacent  tracts.  But  these  eighteen  acres  have  been 
obtained  from  the  State  by  the  vendor  as  the  holder  of  the  legal 
title  to  the  original  tracts,  by  virtue  of  a  privilege  incident  to  that 
title,  and  as  immediately  contiguous  to  those  tracts;  they  must, 
therefore,  pass  from  the  vendor  to  the  vendee  as  connected^  with, 
and  parcel  of  those  tracts  ;  and  consequently,  these  tracts  are  not, 
so  far,  deficient. 

As  to  the  residue,  or  the  deficiency  of  twenty-two  and  a  half 
acres,  it  is  now  too  late  to  claim  an  allowance  for  them,  after  the 
whole  amount  of  the  purchase  money  has  been  voluntarily  and 
fully  paid.  Under  all  the  circumstances  of  this  case,  the  vendor 
cannot  now  be  called  on  to  refund  any  part  of  the  purchase  money. 

It  appears,  that  the  equitable  interest  which  George  Schnertzell 
had  obtained  from  the  holders  of  the  legal  title  has  been  fully  and 
entirely  transferred  to,  and  is  now  vested  in  JoJm  Hoffman,  one  of 
the  plaintiffs.  And  the  representatives  of  the  parties  to  the  origi- 
nal contract,'  having  been  all  of  them  made  parties  to  this  suit : 

Decreed,  that  the  defendants,  by  a  good  and  sufficient  deed 
made,  executed,  and  acknowledged  according  to  law,  translier  and 


112  BURCH  v.  SCOTT. 

convey  unto  the  plaintiff,  John  Hoffman,  his  heirs  and  assigns,  in 
fee  simple,  all  those  several  tracts  of  land  in  the  proceedings  men- 
tioned, called  "  Pout's  Delight,"  and  "  The  Resurvey  on  Beauty," 
and  all  their  interest  in  that  other  parcel  of  land  included  by  a 
warrant  of  resurvey  on  those  tracts  under  the  name  of  "  The 
Reunion."  And  it  is  further  decreed,  that  Henry  Hoffman  is 
hereby  constituted  and  appointed  trustee,  under  the  last  will  and 
testament  of  the  late  James  Hunter  ;  and  that  he,  by  a  good  and 
sufficient  deed,  executed  and  acknowledged  according  to  law, 
convey  unto  the  complainant,  John  Hoffman,  all  the  legal  title  of,  in 
and  to  the  said  tracts  of  land.  And  it  is  further  decreed,  that  the 
defendants  pay  unto  the  complainants  their  costs,  to  be  taxed  by 
the  register. 


BURCH  V.  SCOTT. 


Where  a  party  admitted,  that  he  had  obtained  a  decree  by  default  for  more  than  was 
due  ;  and  did  not  allege,  that  he  had  since  lost  any  of  his  testimony ;  and  it 
appeared  that  the  defendajit  had  negligently  omitted  during  a  space  of  about  five 
months  to  put  in  his  answer ;  but  averred  by  biU  on  oath,  that  he  had  a  good  and 
available  defence  on  the  merits  ;  the  decree  was  set  aside,  and  the  defendant  let  in 
to  answer  on  payment  of  costs. 

All  orders  and  decrees  in  Chancery  may  be  altered,  revised,  or  revoked  during  the 
term  at  which  they  have  been  passed,  on  motion  or  petition ;  but  after  the  term, 
the  party  can  only  obtain  relief  by  original  bill  or  bill  of  review. 

Relief  agsdnst  a  decree  obtained  by  fraud  can  only  be  obtained  by  original  bill,  not 
by  a  mere  bill  of  review. 

A  decretal  order,  in  England,  is  most  commonly  that  which  is  drawn  up  as  the  sub- 
stance of,  and  as  preparatory  to  a  final  decree ;  and  it  may  in  some  respects  be 
enforced  as  a  final  decree.     Here  no  such  decretal  order  is  ever  made. 

A  bill  of  review  lies  after  the  decree  is  signed  and  enrolled,  and  it  is  considered  as 
enrolled  after  it  is  signed  by  the  Chancellor  and  filed  by  the  register. 

Restrictive  orders  staying  the  court's  own  decrees  treated  as  injunctions. 

A  bill  of  review,  or  the  like,  does  not  of  itself  operate  as  a  suspension  of  the  execution 
of  the  decree  complained  of. 

It  is  Stated  in  the  bill,  which  was  filed  on  the  14th  of  July, 
1823,  that  in  the  year  1803  Jesse  Burch  died  intestate,  and  that 
administration  on  his  personal  estate  was  granted  by  the  Orphans 
Court  of  Washington  county,  in  the  District  of  Columbia,  to  his 
widow,  Jane  Burch,  who  took  possession  of  his  personal  estate 
accordingly :  among  which  personalty  were  three  negro  slaves,  as 
mentioned  in  the  inventoiy  returned  by  her ;  that  since  the  death 
of  the  intestate,  Jesse,  those  negroes  had  several  children ;  that 


BURCH  V.  SCOTT.  n^ 

tlie  administratrix,  Jane  Burch,  having  died  intestate,  letters 
of  administration  on  her  personal  estate  were  granted  by  the 
Orphans  Court  of  Washington  countj-,  in  the  District  of  Columbia, 
to  TJwmas  Burch;  and  on  the  same  day,  and  by  the  same  court, 
administration  de  bonis  non  of  the  effects  of  the  late  Jesse  Burch^ 
was  granted  to  tlie  same  Thomas  Burch  ;{a)  that  it  had  not  been 
found  necessaiy  to  make  sale  of  those  negroes  to  pay  the  debts  of 
the  late  Jesse  Burch;  but,  owing  to  the  conduct  of  one  of  the 
sureties  in  the  administration  bond,  Kinsey  GitiingSj  they  remained 
as  a  part  of  the  surplus  of  his  personalty  to  be  distributed  among 
his  next  of  kin ;  that  those  negroes,  with  their  increase,  had  been 
taken  out  of  the  possession  of  the  late  administratrix,  Jane  Burch, 
by  Kinsey  Gittings,  and  held  by  him  during  his  life,  and  after  his 
death  had  passed  into  the  possession  of  William  Scott,  "  who 
claimed  to  hold  them  in  virtue  of  letters  of  administration  granted 
to  him  upon  the  estate  of  Kinsey  Gittings,^^  and  he  had  actually 
sold  them  in  October,  1818,  and  received  payment  for  them, 
amounting,  as  appears  by  his  return  of  the  sales,  to  $2850 ;  "  which, 
with  interest  and  a  reasonable'compensation  for  their  services  while 
in  his  possession,  and  in  the  possession  of  Gittings,  the  plaintiffs 
were  justly  entitled  to  demand  of  this  defendant;  that  the  defend- 
ant was  about  to  distribute  the  money  so  received  by  him  as  a  part 
of  the  assets  of  his  intestate  Gittings.''^ 

Upon  these  circumstances  this  suit  was  instituted  by  Thomas 
Burch,  as  administrator  de  bonis  non  of  the  late  Jesse  Burch,  and  in 
his  own  right,  together  with  Jesse  Burch,  Fielder  Burch,  Mildred 
with  her  husband  James  Johnson,  and  Kitty  with  her  husband  John 
Stephens  ;  which  Thomas,  Jesse,  Fielder,  Mildred,  and  Kitty,  are  the 
children,  and  next  of  kin  of  the  late  Jesse  and  Jane  Burch,  against 
William  Scott  alone.  The  plaintiffs  prayed  to  have  the  defendant, 
Scott,  considered  as  a  trustee  for  their  benefit ;  that  a  distribution 
of  the  negroes,  or  the  proceeds  of  the  sale,  might  be  made  among 
them ;  and  that  the  defendant  might  be  restrained  by  injunction 


(a)  Upon  letters  granted  in  the  District  of  Columbia,  the  executor  or  administra- 
tor is,  by  the  act  of  1S13,  ch.  165,  authorized  to  sue  here ;  although  upon  such  letters 
granted  here,  he  cannot  sue  there,  1  Cran.  259.  But  no  suit  can  be  sustained  here 
by  any  one,  on  letters  of  administi-ation  granted  in  a  foreign  country  ;  1  Hayw.  355 ; 
3  Bac.  Abr.  36 ;  Miif.  PL  155, ;  MoUinson  v.  Bowley,  MS.  1806 ;  or  in  any  one  of  the 
States  of  this  Union,  3  Cran.  319;  9  Cran.  151;  Kirk  v.  Brmm,  MS.  1818.  But 
the  act  of  1815,  ch.  149,  s.  4,  authorizes  the  revival  of  an  action  at  common  law 
against  an  executor  or  administrator,  to  whom  letters  have  not  been  granted  here,  and 
who  "resides  out  of  tliis  State." 

15 


114  BURCH  V.  SCOTT. 

from  parting  \\'ithj  or  paying  over  the  proceeds  of  the  sale  of  those 
negroes. 

An  injunction  bond  was  filed  ;  but,  from  its  not  having  been,  as 
usual,  noted  as  approved  by  the  Chancellor,  it  would  seem  to  have 
been  deemed  unnecessary  in  this  case.  An  injunction  was  granted, 
issued,  and  served.  A  subpana  was  issued  returnable  to  September 
term,  1823,  and  returned  served.  The  defendant  not  appearing, 
an  attachment  was  issued  returnable  to  December  term,  1823,  and 
returned  attached  ;  and  it  was  then  renewed  and  returned  attached 
to  March  term,  1824,  when  the  following  order  was  passed, 

^Oth  March,  1824. — ^Johnson,  Chancellor. {h) — In  this  cause  the 
defendant  being  returned  attached  for  not  appearing  to  the  bill  of 
complaint  filed  by  the  complainants ;  and  the  said  defendant  not 
having  appeared,  upon  motion  of  the  complainants  by  their  solicitor ; 
it  is  this  30th  day  of  March,  1824,  ordered,  that  the  said  defendant, 
either  in  person  or  by  his  solicitor,  put  in  a  good  and  sufficient 
answer  to  each  interrogatory  contained  in  the  bill,  or  a  plea  or 
demurrer  to  the  same,  on  or  before  the  4th  day  of  July  term  next 
of  this  court,  or  otherwise  the  Chancellor,  upon  application  of  the 
complainants,  and  at  discretion,  will  either  take  the  bill  pro  confesso, 
or  direct  a  commission  to  issue  for  taking  depositions,  and  will 
finally  decree  as  to  him  shall  seem  meet  and  consistent  with  the 
established  principles  of  equity,  in  the  same  manner  as  if  the  said 
defendant  had  appeared  and  depositions  had  been  taken  in  the 
usual  way.  Provided  a  copy  of  this  order  be  served  on  the  said 
defendant,  or  left  at  his  usual  place  of  abode,  before  the  20th  day 
of  June  next. 

After  which,  this  order  having  been  returned  served,  the  case  was 
brought  before  the  court  for  further  proceeding. 

%th  July,  1825. — Bland,  Chancellor. — The  bill  having  been 
taken  pro  confesso,  on  motion  of  the  complainants'  counsel,  it  is 
ordered,  that  a  commission  issue  to  Zadock  Magruder  of  Mont- 
gomery county  in  this  State,  and  also  to  John  A.  Smith,  of  the 
city  of  Washington,  to  take  testimony  in  the  cause. 


The  commission  to  Smith  was  returned  with  testimony,  and 
j&led  on  the  3d  of  August,  1825,  and  that  to  Magruder  was  returned 
■with  proofs  and  filed  on  the  next  day. 

(b)  The  terms  and  form  of  this  order  were  adjusted,  by  Chancellor  Hanson, 
according  to  the  provisions  of  the  act  of  1799,  ch.  79,  s.  2;  in  the  case  of  AValsh  & 
others  v.  Delassere  fit  others,  19lh  February,  1800,  and  it  has  been  followed  ever  since. 


BURCH  V.  SCOTT.  115 

4//i  August,  1825. — Bland,  Chancellor. — Ordered,  that  this 
case  be,  and  the  same  is  hereby  referred  to  the  auditor,  with  direc- 
tions to  state  an  account  from  the  proceedings,  shewing  the  hires 
of  the  said  negroes,  with  which  the  said  late  Kinsey  Oittings  was 
chargeable,  from  the  time  they  came  into  his  possession  and  were 
demanded  of  him,  until  they  were  sold  by  his  administrator,  and 
the  amount  of  sales  of  said  negroes,  and  the  interest  thereon  from 
that  time. 

The  auditor  on  the  same  day  made  a  report,  in  which  he  says, 
that  he  had  stated  an  "  account  shewing  the  amount  of  sales  of  the 
negroes,  and  the  interest  thereon  from  the  time  they  were  sold  ;  but 
that  he  finds  nothing  in  the  proceedings  from  which  he  can  state 
an  account  shewing  the  hire  of  the  said  negroes,  with  which  Kin- 
sey  Gittings  was  chargeable  from  the  time  they  came  into  his  pos- 
session and  were  demanded  of  him,  until  they  were  sold  by  the 
defendant  as  his  administrator."  Upon  which  the  case  was  imme- 
diately submitted  without  argument. 

4th  August,  1825, — Bland,  Chancellor. — Decreed,  that  the  report 
of  the  auditor  be  confirmed,  and  that  the  defendant,  William  Scott, 
forthwith  pay  to  the  complainants,  or  bring  into  this  court  to  be  paid 
to  them,  the  sum  of  $4006  15,  with  interest  on  $2850,  part  thereof, 
from  the  fourth  day  of  August,  1825,  until  paid  or  brought  in  as 
aforesaid. 


On  the  22d  of  September,  1825,  the  plaintiffs,  by  their  petition, 
•applied  for  a  Jiei'i  facias,  which  was  immediately  ordered  and 
issued  to  the  sheriff  of  Montgomery  county,  which  writ  was 
endorsed  thus,  "  complainants  release  DoU.  392  90|." 

On  the  15th  of  November,  1825,  William  Scott,  together  with 
Berry  Gittings,  Michael  Gittings,  Richard  Gittings,  Sarah  Git- 
tings, an  infant  by  her  guardian  and  next  friend,  and  Jeremiah 
Gittings,  also  an  infant  by  his  guardian  and  next  friend,  filed  a 
bill,  which  they  style,  "  their  supplemental  bill  in  the  nature  of  a 
bill  of  review,"  in  which  they  recite  all  the  proceedings  in  the 
before  mentioned  case. 

They  state  and  object  to  those  proceedings  and  the  decree  there- 
upon, that  under  the  commission  to  Smith,  three  witnesses  were 
examined,  who  "  accordinir  to  the  tenor  of  the  return  were  no 
otherwise  sworn,  but  severally  and  respectively  to  depose  and  tes- 
tify according  to  the  best  of  their  knowledge  and  belief,  and  are 


IIQ  BURCH  r.  SCOTT. 

not  authenticated  by  the  signature  of  the  witnesses  ;"  that  by  the 
return  of  the  commission  to  Magruder,  it  appears  that  one  witness 
was  examined,  not  on  oath,  but  on  affirmation,  neither  the  form, 
nor  the  terms  of  which  are  set  forth,  nor  has  the  witness  signed  his 
deposition ;  that  this  plaintiff,  William  Scott,  is  the  administrator  of 
the  late  Kinsey  Gittings,  and  the  other  plaintiffs  are  his  children 
and  next  of  kin,  who  as  such  are  the  persons  really  and  exclusively 
interested  in  the  matter  in  controversy,  and  ought  to  have  been 
made  parties  to  the  suit,  in  which  the  decree  of  the  4th  of  August, 
1825,  was  passed.  Instead  of  which  this  plaintiff,  Williain  Scott, 
alone  was  made  defendant  and  charged  by  the  decree,  in  that  case, 
in  his  own  proper  person,  although  he  could  only  be  held  liable,  if 
at  all,  as  administrator  of  the  late  Kinsey  Gittings,  being  as  such 
no  more  than  a  trustee  for  his  creditors  and  next  of  kin. 

They  further  state,  that,  from  certain  judicial  proceedings  and 
other  circumstances,  it  appeared,  that  this  plaintiff,  Willia7n  Scott, 
was  entitled  to  various  credits,  which  had  not  been  given,  and  an 
ex  parte  decree  had  been  obtained  by  Thomas  Burch,  and  others, 
in  that  case,  for  a  sum  greatly  exceeding  their  just  due,  by  their 
fraudulently  concealing  the  proper  sets  off  and  deductions,  some 
of  which  they  had  all  along  admitted,  and  others  were  clear  and 
indisputable. 

And  they  further  state,  that  this  plaintiff,  William  Scott,  was 
frequently,  and  contrary  to  his  anticipations  and  expectations,  dis- 
appointed in  having  the  business  put  in  train  for  a  decision ;  he  at 
length  became  so  anxious  and  uneasy  on  the  subject,  that,  hearing 
of  his  counsel  being  in  attendance  at  the  Court  of  Appeals  at  An- 
napolis, at  the  June  term  of  1824,  he  came  from  his  home  in 
Montgomery  to  Annapolis,  for  the  express  and  only  purpose  of 
having  an  interview  with  his  counsel,  and  getting  his  answer 
draw^n,  and  filed,  &c.  But  he  found  his  counsel  on  the  eve  of 
returning  to  Washington,  whither  he  accompanied  him,  and  imme- 
diately on  their  amval,  the  answ^er  was  drawn,  regularly  sworn  to, 
and  put  into  the  hands  of  his  counsel,  to  be  transmitted  by  the 
stage  next  morning,  to  the  register  of  this  court;  that  he  had 
frequent  interviews  afterwards  with  his  counsel  on  the  subject ;  he 
as  well  as  his  counsel,  took  it  for  granted,  the  answer  and  exhibits 
had  been  duly  received ;  and  he  was  informed  by  his  counsel,  that 
he  had  made  an  arrangement  with  Mr.  Key,  one  of  the  opposite 
counsel,  who  resided  in  Georgetown,  to  fix  upon  some  day  conve- 
nient for  them  both,  to  go  to  Annapolis  and  argue  the  cause ;  and 


BURCH  V.  SCOTT.  117 

this  plaintiff,  William  Scott,  remained  under  this  impression,  with- 
out the  slightest  intimation  of  the  answer's  having  miscarried,  till, 
to  his  utter  astonishment,  he  found  there  had  been  a  decree  against 
him,  followed  by  execution  :  and  when  he  communicated  to  his 
counsel  the  fact  of  his  property  having  been  seized  by  the  sheriff, 
he  was  utterly  at  a  loss  to  comprehend  how  it  could  have,  been 
brought  about ;  having  only  heard,  a  short  time  before,  of  the  mis- 
carriage of  the  answer,  and  not  dreaming  that  there  could  have 
been  a  decree,  till  writing  to  the  register  of  this  court  for  informa- 
tion, he  was  certified  of  the  fact. 

Walter  Jones,  the  counsel  of  William  Scott,  in  an  affidavit  made 
by  him  and  filed  with  this  bill,  confirms  what  is  stated  by  Scott,  as 
to  his  being  called  on  at  Annapolis,  and  followed  to  Washington, 
where  he  states,  that  Scott  remained  with  him  until  he  had  drawn 
his  answer,  and  it  was  sworn  to  by  him,  before  a  magistrate; — that 
finding  the  package  so  large  as  to  make  the  transmission  of  it  by 
mail  very  expensive,  he,  Jones,  sent  his  servant  to  the  stage  office 
to  inquire  whether  there  were  any  passengers  for  Annapolis  in  the 
stage  of  the  next  day ;  who  returned  with  an  answer,  that  he  had 
found  a  gentleman  who  would  take  charge  of  the  packet ;  upon 
which  he  delivered  it  to  him  very  securely  sealed  up,  and  directed 
to  the  Register  of  the  Court  of  Chancery  at  Annapolis ;  with  a 
note,  requesting  him  to  file  the  answer,  &.c.,  and  enter  a  notice  to 
dissolve.  He  does  not  recollect  that  his  servant  named  the  person 
to  whom  he  delivered  the  packet ;  if  he  did,  he  has  forgotten  it. 
He  had  frequent  conversations  afterwards  vrith  Mr.  Key,  about  ap- 
pointing a  day  mutually  convenient  for  them  both,  to  go  to  Anna- 
polis to  argue  the  cause.  He  rested  without  doubt  or  apprehension 
of  the  answer's  being  regularly  filed,  and  does  not  remember  when 
he  experienced  so  great  a  surprise,  as  vvhen  he  heard  of  the  decree 
in  the  cause. 

These  plaintiffs,  by  this  bill,  pray,  that  this  plaintiff,  William 
Scott,  may  be  permitted  to  put  in  his  original  answer,  plea,  &c.  to 
the  original  bill,  &c.,  and  that  these  other  plaintiffs  may  be  admitted 
as  parties  to  the  proceedings,  as  they  are  parties  in  interest,  and  to 
answer  and  defend,  &c. ;  that  the  case  may  be  heard  upon  all  and 
singular  the  allegations,  matters  and  things  in  this  their  supple- 
mental bill,  in  the  nature  of  a  bill  of  review,  alleged  and  contained, 
at  the  same  time,  that  it  is  re-heard  upon  the  original  bill;  that 
these  plaintiffs  may  be  restored  to  their  original  situations  respec- 
tively, before  the  issuing  of  the  commission  and  the  making  of  the 


118  BURCH  V.  SCOTT. 

said  decree ;  that  the  said  decree  may,  by  the  order  of  this  court, 
be  opened  for  such  re-hearing;  that  the  execution  of  the  same 
may  be  suspended,  and  the  said  fieri  facias  countermanded  by  the 
like  order  of  this  court ;  and  that  in  general  they  may  be  relieved 
according  to  the  equity  and  nature  of  their  case,  &c.  And  in  con- 
clusion, a  prayer  for  suhpcena  against  the  plaintiffs  to  the  original 
biU,  &c.,  and  an  order  of  publication  against  those  of  them  who 
are  non-residents. 

IQth  JS'ovember,  1825. — Bland,  Chancellor. — On  hearing  the 
complainant's  counsel,  and  considering  the  aforegoing  bill,  together 
with  the  affidavit  of  the  complainant's  counsel  therewith  filed ;  and 
the  said  William  Scott  having  filed  his  bond  with  surety,  approved 
by  the  Chancellor,  to  abide  by,  and  fulfil  the  order  of  this  court  in 
the  premises  : — -it  is  ordered,  that  subpoenas  issue,  and  publication 
be  made,  as  prayed  by  the  said  bill.  And  it  is  further  ordered, 
that  all  further  proceedings,  in  execution  of  the  said  decree  of  this 
court,  of  the  fourth  day  of  August  last,  be,  and  the  same  are  hereby 
enjoined,  suspended  and  countermanded,  until  the  further  order  of 
this  court,  as  prayed  by  the  foregoing  bill. 


On  the  3d  May,  1826,  the  defendants,  Thomas  Burch  and  others, 
filed  their  answers,  in  which  they  admit,  that  their  counsel  had 
been  informed,  shortly  after  the  serving  of  the  order  of  the  30th 
March,  1824,  that  William  Scott  had  filed  his  answer,  and  that  it 
had  been  proposed,  that  a  day  should  be  fixed  on  to  go  to  Anna- 
polis to  try  the  cause ;  that  their  counsel  wrote  for  a  copy  of  Scotfs 
answer,  and  was  informed  that  it  had  not  been  filed,  which  infor- 
mation he  communicated  shortly  afterwards,  to  Mr.  Jojies,  the 
counsel  of  Mr.  Scott;  that  the  same  fact  was  again,  after  a,  con- 
siderable interval,  communicated  to  Mr.  Jones,  and  also  to  William 
Scott  himself.  And  they  further  admit,  "  that  there  ought  to  have 
been  a  credit  entered  for  the  sums  mentioned  in  the  decree  of  the 
Orphans  Court  of  Washington  county,  and  which  were  to  be 
returned  to  Kinsey  Gittings,  on  his  giving  up  the  property;  or 
rather,  that  the  defendants  were  willing  to  admit  a  credit  for  those 
sums,  though,  as  they  were  tendered  to  Gittings  in  his  lifetime, 
and  also  to  Scott,  since  his  death,  when  the  negroes  were  demanded 
of  him,  and  compliance  with  the  said  Orphans  Court's  decree 
required,  and  they  refused  then  to  receive  the  same  and  give  up 
the  negroes,  and  have  since  put  the  defendants  to  very  great 
expense  in  recovering  their  claim,  they  might  well  have  been  justi- 


BURCH  V.  SCOTT.  119 

fied  in  refusing  to  allow  such  credit.  And  they  state,  that  a  credit 
for  $392  90,  the  amount  of  those  two  sums,  and  interest  upon 
them,  was  endorsed  on  the  Jieri  facias,  issued  on  the  said  decree, 
and  the  balance  only  was  required  to  be  made  by  the  said  execu- 
tion, which  balance  they  aver  they  are  justly  entitled  to,  and  that 
no  other  deduction  or  discount  ouofht  to  be  allowed  against  the 
amount  of  the  claim,  as  stated  in  the  said  decree."  And  they  fur- 
tlier  deny  all  fraud,  &c.,  asalleged  in  the  bill,  &c. 

These  defendants,  Thomas  Burch  and  others,  by  their  petition 
allege,  that  the  plaintiifs,  William  Scott  and  others,  had  issued  no 
subpaenasj  nor  applied  for  any  order  of  publication  against  these 
defendants,  who  are  nonresidents,  as  prayed  by  their  bill ;  that 
they,  on  learning  that  such  a  bill  had  been  filed,  have  answered 
thereto  ;  and  now  pray,  that  the  order  of  the  16th  November, 
1825,  may  be  revoked. 

4th  May,  1826. — Bland,  Cliancellor. — On  the  foregoing  appli- 
cation it  is  ordered,  that  the  order  of  the  16th  of  November  last 
be  dissolved  and  revoked,  unless  cause  to  the  contrary  be  shewn 
on  the  fourth  day  of  the  next  term.  Provided  a  copy  of  this 
order,  together  with  a  copy  of  the  foregoing  petition,  be  serv^ed 
on  the  complainants  or  their  solicitor,  on  or  before  the  first  day 
of  June  next. 


A  copy  of  this  order  having  been  served  as  required,  the  case 
was  afterwards  brought  before  the  court  for  its  determination. 

2bth  July,  1826. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing,  on  the  notice  given  in  pursuance  of  the  order  of 
the  4th  of  May  last,  and  the  solicitors  of  the  parties  having  been 
fully  heard,  the  proceedings  were  read  and  considered. 

The  Chancellor  feels  every  disposition  to  relieve  this  case  from 
all  embarrassing  forms,  and  to  reach  its  merits,  if  practicable.  It 
will,  therefore,  be  necessary  to  disengage  the  complainants'  sub- 
stantial equity  and  object  from  the  forms  with  which  they  have  been 
clothed ;  and  to  examine  their  bill  with  a  due  regard  to  their  equity  and 
object.  The  substance  of  their  complaint  is,  that  a  decree  has  been 
obtained  against  one,  which  materially  affects  all  of  them,  erroneously ; 
by  fraud ;  by  surprise  ;  for  much  more  than  is  due ;  or,  to  say  the 
least,  improperly  and  to  the  exclusion  of  a  good  and  available  de- 
fence. And  upon  the  truth  of  these  allegations,  they  ground  their 
equity  to  have  the  decree  of  the  4th  of  August  last  set  aside,  their 
undenied  credits  allowed,  their  defence  let  in,  and  the  matters  in 


120  BURCH  V.  SCOTT. 

controversy  heard  upon  the  merits.  This  is  the  object,  and  the 
mode  chosen  by  them  to  attain  it,  is,  by  what  they  call  "  a  supple- 
mental bill,  in  the  nature  of  a  bill  of  review."  Whatever  may  be 
the  cause  of  complaint,  the  party  asking  relief  must  conform,  at 
least  in  substance,  to  prescribed  rules  as  to  time  and  manner. 

It  has  been  the  long  estabhshed  usage  and  law  of  the  Court  of 
Chancery,  to  consider  all  its  orders  and  decrees,  as  completely 
within  its  control  and  open  to  be  altered,  revised,  or  revoked  during 
the  whole  term  at  which  they  are  passed,  on  motion  or  by  petition. 
But,  if  the  term  is  suffered  to  elapse,  the  party  can  only  obtain 
relief  by  original  bill,  or  by  a  bill  of  review,  (a)  This  law  of  this 
court  is  analogous  to  that  which  has  been  adopted  by  the  courts 
of  common  law ;  and  which  has  been  found  alike  salutary  in  both. 
It  is  believed  there  is  no  decision  of  the  Court  of  Appeals,  which 
has  directly  or  distinctly  restricted  or  altered  this  rule  of  the  Court 
of  Chancery.  But  in  this  case,  the  bill  of  these  plaintiffs  was  not 
filed  until  long  after  the  close  of  the  term  at  which  the  decree  was 
signed.  It  cannot,  therefore,  be  considered  as  entitled  to  the  same 
indulgence,  or  as  standing  altogether  on  the  footing  of  a  petition, 
for  a  re-hearing,  or  alteration,  or  opening  of  a  decree,  filed  during 
the  term  at  which  the  decree  was  signed. 

This  bill  charges,  that  the  decree  of  the  4th  of  August  last  was 
obtained  by  fraud.  It  is  the  peculiar  province  of  this  court  to 
grant  relief  in  all  cases  against  fraud  and  accident,  not  within 
reach  of  the  courts  of  common  law ;  and  a  decree  obtained  with- 
out making  those  parties,  whose  rights  are  affected  by  it,  is,  as  to 
them,  fraudulent.(6)  And  there  can  be  no  case  of  fraud,  in  w^hich 
it  would  be  more  fit  and  proper  for  this  court  to  interfere,  than  upon 
a  charge,  that  its  own  decree  had  been  obtained  by  fraud.  Such 
a  case  is,  however,  brought  before  the  court,  not  by  a  bill  of  review , 
but  by  an  original  bill.(c)  And  in  that  light,  the  allegations  of 
this  bill  require  the  court,  in  some  respects  to  consider  it. 

In  the  Court  of  Chancery  of  England,  the  Chancellor,  it  seems, 
after  the  hearing,  pronounces  the  substance  of  his  decree  orally, (d) 
minutes  of  which  are  taken  down  by  the  register,  who  afterwards 
draws  them  out  into  the  form  of  a  decretal  order ;  and  if,  in  doing 
so,  any  mistake  should  occur,  the  execution  of  the  order  may  be 


(a)  Mussel  v.  Morgan,  3  Bro.  C.  C.  74 ;  Cameron  v.  McRoberts,  3  Wheat.  591. — 
(6)  Gitfard  v.  Hort,  1  Sclio.  &.  Lefr.  386.— (c)  1  Mont.  Dig.  .345.— (</)  Kennedy  v. 
Daly,  1  Scho.  &.  Lefr.  384 ;  Giffard  v.  Hort,  1  Scho.  &.  Lefr.  396. 


BURCH  V.  SCOTT.  121 

stayed  awhile,  until  it  can  be  corrected  by  motion  in  court.  As 
thus  drawn  up,  this  judgment  of  the  court  is  always  called  its  "de- 
cretal order."  But  it  has  the  force  only  of  an  interlocutor}-  order; 
and  is  not  a  perfect,  complete,  and  final  decree  before  enrolment ; 
for,  till  then  the  Chancellor  may  re-hear,  alter,  or  revise  it.  The 
proper  officer  draws  up  the  form  of  tlie  decree  for  enrolment,  from 
the  decretal  order,  reciting  all  the  pleadings,  &c. ;  after  which  a 
fair  copy  is  made  upon  parchment,  and  signed  by  the  Chancellor. 
It  is  then,  and  not  until  then,  an  enrolled  and  final  decree.  The 
interval  of  time  suffered  to  elapse,  between  the  making  of  the  de- 
cretal order,  and  the  enrolment,  is  seldom  less  than  a  month,  often 
more,  and  in  some  cases  exceeds  a  whole  year.  But  in  this  inter- 
val the  decretal  order  is  so  far  considered  as  a  final  decree,  that  it 
maybe  enforced  by  attachment. (e) 

The  Court  of  Appeals  have  declared,  that  "  the  decree  of  the 
Chancellor  is  subject  to  his  control,  only  upon  a  bill  of  review,  or 
a  bill  in  the  nature  of  a  bill  of  review.  A  bill  of  review  lies  after 
the  decree  is  signed  and  enrolled.  A  bill  in  the  nature  of  a  bill 
of  review  lies  after  the  decree  is  made,  but  before  enrolment.  A 
decree  must  he  considered  as  enrolled,  after  it  is  signed  by  tJie  Chan- 
cellor, and  filed  by  the  register. ^''{f)  But  the  Chancellor  rarely,  if 
ever,  pronounces  his  decree  orally,  as  in  England,  or  if  he  does  do 
so  in  any  case,  no  minutes  of  it  are  taken  down.  He  is  considered 
as  having  pronounced  no  judgment ;  nor  as  having  made  any  deci- 
sion in  the  cause,  until  a  decree  is  drawn  up  in  writing,  in  full  and 
proper  form,  and  signed  by  him.  That  decretal  order,  which,  in 
England,  ahvays  precedes  the  enrolled  or  final  decree,  is  never 
made  here,  and  is  unknown  to  our  practice.  But  in  England  the 
phrase  "  decretal  order,"  is  often  applied  to  various  other  orders 
besides  that  w^hich  immediately  precedes  the  decree;  and  it  is 
sometimes  applied  in  the  same  sense  here. 

The  plaintiffs  have  styled  this  bill,  "  their  supplemental  bill,  in 
the  nature  of  a  bill  of  review. "(o-)  But  one  of  them  was  the  defetid- 
ant,  and  the  others  were  no  parties  to  the  original  bill,  upon  which 
the  decree  complained  of,  had  been  passed  ;  and  it  is  attached,  as 
an  addition,  to  no  other  bill;    nor  does  it  purport  to  supply 'the 


(c)  Gilb.  For.  Rom.  1G2 ;  1  Han.  Pr.  Cliaii.  77,  620;  2  Hair.  Pr.  Chan.  174; 
2  Mad.  Chan.  464  ;  2  Fow.  Ex.  Pra.  164.— (/)  Hullingswoitli  v.  McDonald,  2  H. 
&.  J.  237 ;  Beams'  Old.  1 ;  Digger's  lessee  v.  Bealc,  1  H.  &.  McH.  71.— iff)  1  Mout. 
Dig.  31&.  ^= 

16 


222  BURCH  V.  SCOTT. 

defects  of  any  original  bill.  It  is,  therefore,  in  no  sense,  propeiiy 
and  alone,  a  supplemental  bilL[h) 

In  England,  a  bill  of  review  can  only  come  in  after  the  decree 
has  been  perfected  and  enrolled.  But  if  the  party  discover  any 
error,  or  new  matter  of  fact  after  the  decree  has  been  pronounced, 
and  before  it  has  been  enrolled,  he  may  obtain  relief  by  a  bill  in 
the  nature  of  a  bill  of  review ;  and  need  not  wait,  or  go  to  the 
expense  of  having  the  decree  enrolled.  Now,  from  what  the 
Court  of  Appeals  have  said,  as  we  have  seen,  it  clearly  follows, 
that,  in  this  State,  there  can  be  no  such  thing  as  a  bill,  in  the  na- 
ture of  a  bill  of  review  :  since  all  decrees  here  are  made  by  being 
signed  and  filed  ;  and  when  so  made,  are  to  be  considered  as  decrees 
enrolled.  Most  clearly  such  a  bill  cannot  be  resorted  to  in  this 
case. 

A  bill  of  review,  properly  so  called,  lies  against  those  who  were 
parties  to  the  original  bill,  and  against  them  only ;  and  must  be 
either  for  error  apparent  on  the  face  of  the  decree,  or  for  some  new 
matter. (i)  But  before  a  bill  of  review,  for  newly  discovered  mat- 
ter, can  be  filed,  the  party  must  petition  for  leave  to  do  so  ;  setting 
forth  the  new  matter,  strongly  sustaining  his  statement  by  affida- 
vits ;  upon  which  the  leave  of  the  court  is  granted.  In  this  case 
there  has  been  no  petition,  setting  forth  newly  discovered  matter, 
nor  any  leave  given  to  file  such  a  bill.  This  bill,  therefore,  can,  in 
no  respect  whatever,  be  considered  as  a  bill  of  review,  grounded 
on  the  discovery  of  new  matter. 

A  bill  of  review  for  error  apparent  on  the  face  of  the  decree, 
may  be  filed  without  asking,  or  obtaining  the  leave  of  the  court ; 
and  it  may  be  brought  by  either  of  the  parties  to  the  original  biU 
alone ;  or  it  may  be  filed  by  a  person  not  a  party  to  the  original 
decree,  but  whose  rights  are  injured  by  it.  Such  is  the  case  now 
before  this  court.  The  bill  of  these  plaintifl[s  has  this  character  ; 
and  more. 

This  bill  has  yet  another  aspect.  It  alleges,  that  the  plaintiffs, 
one  of  whom  was  a  party  to  the  original  suit,  had  a  good  and 
available  defence  ;  that  all  of  them  should  have  been  made  parties  ; 
that  they  have,  all  of  them,  an  interest  which  they  will  be  able  to 
maintain  and  prove ;  and  that  the  decree  of  the  4th  of  August  last 
was  obtained  by  surprise,  for  a  greater  amount  than  was  actually 

(/i)  1  Mont.  Dig.  315;  2  Mad.  Chan.  519;  1  Fow.  Ex.  Pra.  61.— (t)  1  Mont.  Dig, 
330 ;  2  Mad.  Chan.  537. 


BURCH  V.  SCOTT.  123 

due ;  or  owing  to  a  kind  of  negligence  for  which  they  are  not  at 
all  blamable,  or  for  which  they  may,  at  least,  be  excused.  Upon 
these  grounds  they  pray  to  have  the  decree  opened  and  the  cause 
re-heard.  According  to  ihe  English  authorities,  if  the  enrolment 
of  a  decree  be  obtained  by  surprise,  or  irregularly,  it  may  be 
opened ;  provided,  the  application  be  made  within  a  reasonable 
time.  And  w^here  the  merits  of  the  case  had  not  been  entered 
into,  an  enrolled  decree  has  been  set  aside  upon  special  circum- 
stances, notwithstanding  the  proceedings  were  strictly  regular. 
For  a  court  of  equity-  will  make  every  effort,  within  its  power,  to 
reach  the  merits  of  the  case,  and  have  justice  done.(  j) 

This  bill,  then,  divested  of  all  extraneous  matter,  may  be  regarded 
in  three  distinct  characters :  first,  as  an  original  bill,  to  have  the 
decree  of  the  4th  of  August  last  reversed  on  the  ground  of  fraud, 
because  it  injuriously  affects  the  interests  of  some  of  these  com- 
plainants who  were  not  parties  to  it ;  secondly,  as  a  bill  of  review 
for  error  apparent  on  the  face  of  the  decree  ;  and  thirdly,  as  a  bill, 
grounded  on  the  peculiar  circumstances,  asking  to  have  the  decree 
by  default  set  aside,  and  the  case  re-heard  upon  the  merits. 

It  was  in  these  characters,  that  it  presented  itself  to  the  mind 
of  the  Chancellor,  when  it  was  first  laid  before  him.  He  then  felt, 
as  he  still  does,  a  strong  impression,  that  these  different  characters 
and  alternative  aspects,  and  prayers,  were  so  entirely  incompatible, 
as  to  be  incapable  of  being  blended  together  in  the  same  bill:(^') 
but  he  conceived,  that  if  it  could  be  sustained  in  all,  or  any  of 
them,  the  parties  complaining  would  be  entitled  to  relief.  And, 
under  this  impression,  it  seemed  to  him  fit  and  proper,  to  suspend, 
at  least  for  a  season,  the  execution  of  the  decree,  until  these  mat- 
ters could  be  more  carefully  canvassed,  and  both  parties  could  be 
heard.  And  therefore  it  was,  that  he  passed  the  order  of  the  16th 
of  November  last ;  which  operated  as  an  injunction,  and  was 
intended  so  to  operate.  (/) 

(j)  Kemp  I'.  Squire,  1  Ves.  206;  2  Mad.  Chan.  465. 

(/c)  Perrj-  v.  Phelips,  17  Ves.  176. 

(0  Restrictive  orders,  stajing  the  execution  of  the  court's  own  decree,  so  common 
in  England,  have  always  there,  Edin.  Inj.  209,  as  here,  been  considered  as  injunc- 
tions, and  been  treated  accordingly,  Norwood  v.  Norwood,  MS.  1808. 

Clapham  v.  Thompson-.— This  wa.s  a  bill  to  account,  &.C.,  filed  on  the  22d  of 
September,  1787,  praying  for  relief,  and  also  for  an  injunction  to  stay  a  sale  under  a 
fieri  facias  from  this  court.    Upon  which  was  passed  the  following  order. 

22(Z  September,  1787. — Rogers,  Chancellor. — On  the  bill  of  complaint  exhibited  ia 
this  coui-t  by  Josias  Clapham  and  Mary  Carey,  against  Cornelius  Thompson,  John 


124  BURCH  V.  SCOTT. 

But  in  the  course  of  the  argument,  the  one  party  seemed  to  con- 
strue this  order  as  a  total  revocation  of  the  decree  of  the  4th  of 

Thompson,  and  Ann  McDonald — it  is  ordered  by  the  Chancellor,  according  to  the 
prayer  of  the  said  bill,  that  Die  sales  of  the  property  of  the  said  Josias  Clapham  and 
Mary  Carey,  taken  by  the  sherilF  of  Frederick  county,  by  virtue  of  a  ^fieri  facias 
issued  from  this  court  in  the  names  of  Cornelius  Thompson,  John  Thompson,  Angus 
McDonald  and  Ann  his  wife,  against  the  lands  and  chattels  of  the  said  Josias  Clap- 
ham  and  Mary  Carey,  and  advertised  for  sale  on  the  twenty-fifth  instant,  be  stayed  ; 
and  tliat  the  sheriff  of  Frederick  county  forbear  and  desist  from  making  arry  sale  of 
the  said  property,  or  any  pait  thereof,  until  ftiilher  order  of  the  Chancery  Court. 
And  it  is  further  ordered,  that  the  depositions  of  witnesses,  taken  before-  a  single 
magistrate,  be  received  in  evidence  in  tliis  cause,  upon  giving  five  days'  notice  to  the 
adverse  party.  

Some  time  after  which,  the  depositions  of  sundry  witnesses  having  been  taken,  the 
case  was  again  brought  before  the  court. 

June,  1789. — Rogers,  Chancellor. — Ordered,  that  an  account  be  stated  and  taken 
between  the  parties ;  and  that  commission  issue  to  Randolph  B.  Latimer  and  Robert 
Denny,  as  auditors,  to  state  -and  take  the  said  account ;  and  tliat  the  said  auditors 
apply  to  this  court  for  instructions  in  adjusting  the  said  account,  as  occasion  may 
require.* 

And'fae  cause  so  standing  continued  until  December  court,  seventeen  hundred  and 
eighty-nine,  a  commission  issued  to  the  said  auditors  to  state,  settle,  and  adjurt  the 
said  account.  The  commission,  with  certain  annexed  accounts,  were  aftenvaids 
returned  to  the  court  here,  and  are  contained  in  tlie  words  and  figures  following, 
to  wit : — 

"  Maryland,  set. — The  State  of  Marj'land  to  Randolph  B.  Latimer  and  Robert 
Denny,  Esquires,  of  Ann  Arundel  county.  Greeting : — Know  ye,  that  we  have 
appointed  you  to  be  our  commissioners  to  audite,  state,  settle,  and  adjust  all  accounts 
in  a  certain  cause  depending  in  our  Court  of  Chancery,  between  Josias  Clapham  and 
Mary  Carey,  complainants,  and  Cornelius  Thompson,  John  Thompson,  and  Anne 
McDonald,  defendants  :  We  therefore  require  you  to  state,  audite,  settle  and  adjust  all 
accounts  relating  to  the  matters  in  dispute  that  shall  be  produced  to  you,  by  either  of 
the  parties ;  and  that  you  reduce  to  writing  such  accounts  as  shall  be  stated  and 
settled  by  you,  and  the  same  you  send,  together  with  this  our  commission,  under  your 
hands  and  seals,  with  all  convenient  speed,  to  our  High  Court  of  Chancery. — Witness 
the  Honourable  Alexander  Contee  Hanson,  Esq.,  Chancellor,  this  second  day 
of  February,  Anno  Domini  1790. 

Samuel  H.  Howard,  Reg.  Cur.  Can. 

Under  and  with  this  commission,  t!ie  auditors  stated  and  returned  an  account.  And 
the  cause  so  standing  continued  until  May  court,  one  thousand  seven  hundred  and 
ninety,  it  was  ordered  that  the  following  entry  be  made,  to  wit : — Notice  of  motion  to 
confirm  the  auditors'  return,  and  dissolve  the  injunction  nisi  the  thirteenth  day  of  July 
next. 

After  which,  there  being  no  exceptions  filed  to  the  auditors'  return,  on  the  17th 
Atigust,  1790,  dea-ced,  that  the  auditors'  return  be  confirmed ;  that  the  injunction, 
order  be  dissolved;  and  that  the  defendant3  be  permitted  to  proceed  on  their /m 
facias  for  a  certain  amount. —  Chancery  Proceedings,  Letter  D.,  1790,  pages  424,  483. 

•  In  cases  of  payments  made  in  bills  of  credit,  it  was  declared,  that  the  Chancellor  might 
appoint  his  register  or  other  person  to  state  and  adjust  the  claims,  and  to  strike  the  balance. 
June,  17S0.  ch.  8,  s.  17. 


BURCH  V.  SCOTT.  125 

August  last ;  and  the  other,  as  a  mere  stay  of  execution,  because 
of  some  credits  not  having  been  given.  It  was  also  urged,  that 
the  allowing  of  such  a  bill  of  review  to  be  filed,  did,  of  itself, 
operate  a  suspension  of  all  further  proceedings,  until  the  final  hear- 
ing ;  and  that  it  must  be  so  understood,  when  taken  in  connexion 
with  the  prayer  of  the  bill^  and  the  circumstances  of  a  bond  having 
been  required  and  accepted.  The  Chancellor  has  been  misunder- 
stood. 

According  to  the  English  law,  neither  the  filing  of  a  petition  for 
re-hearing ;  nor  a  bill  in  the  nature  of  a  bill  of  review ;  nor  a  bill 
of  review  for  error  apparent  on  the  face  of  the  decree ;  nor  a  bill 
of  review"  for  new  matter,  after  leave  given  ;(77i)  nor  an  original 
bill,  to  set  aside  a  decree  on  the  ground  of  fraud ;  nor  a  bill  to 
open  an  enrolled  decree,  and  let  in  the  merits,  has  ever,  or  under 
any  circumstances  been  considered,  iti  itself]  as  a  suspension  of 
the  execution  of  a  decree.  The  party  having  the  decree,  in  all  such 
cases,  is  allowed  to  proceed,  unless  specially  and  expressly  restrain- 
ed ;  which  is  never  done  but  on  the  sum  decreed  being  brought  into 
court,  or  on  good  security  being  given.  Similar  law  and  practice 
has  been  long  established  here ;  and,  hence  it  was,  that  the  Chan- 
cellor required  a  bond  with  approved  surety,  to  be  filed  before  he 
imposed  the  restriction  or  injunction,  expressed  in  the  order  of  the 
16th  of  November  last. (71) 

If,  on  considering  this  bill  in  its  tliird  character,  there  should  be 
found  suflficient  cause  for  opening  the  decree,  and  having  the  case 
re-heard  upon  its  merits,  it  will  be  most  advantageous  to  all  parties, 
that  it  should  be  done  now :  And  it  will  be  unnecessary  to  inquire, 
and  express  an  opinion,  whether  the  three  characters  of  this  bill 

(m)  Mitf.  PI.  8S. 

(n)  Mitf.  PL  89. 

Carroll  v.  Parran. — February,  173.3. — Bill  of  review — subpcma  issued. — Upon 
motion  of  the  defendant's  counsel,  that  the  bill  be  dismissed— on/crcrf,  that  the  said 
bill  be  dismissed  with  costs ;  leave  not  being  given  eitlier  by  petition  or  motion  to 
file  such  bill  of  review.  

Daniel  Dulany,  on  behalf  of  Charlea  Carroll,  moves  the  court,  that  he  may  have 
leave  to  file  a  bill  of  review  against  Parran,  and  that  a  bond  with  good  security,  pay- 
able to  John  PaiTan,  maj-  be  lodged  in  court  by  the  said  Carroll  to  stay  execution  of 
the  same  decree. — Ordered,  that  a  bill  of  review  be  filed,  and  that  no  execution  issue 
upon  tlie  former  decree.  

Upon  motion  of  Samuel  Young,  of  counsel  with  the  defendant, — Ordered,  that  he 
have  leave  given  to  answer  until  next  court. —  Chancery  Records,  Lib.  I.  R.  No.  2, 
pages  543,  643. 


126  BURCH  V.  SCOTT. 

are  not  incompatible,  particularly  as  no  objection  to  it  has  been 
made  on  that  ground ;  or  whether  the  decree  has  been  obtained  by- 
fraud  or  not ;  or  is  erroneous  upon  its  face.  The  decree  of  the 
4th  of  August  last,  now  complained  of,  was  obtained  in  that  suit 
by  the  default  of  the  defendant,  in  not  filing  his  answer  within  the 
time  prescribed  by  the  rules  of  the  court.  This  apparent  negli- 
gence the  present  plaintiffs,  by  their  bill,  have  endeavoured  to 
account  for,  to  justify,  or  to  excuse.  And  whether  they  have  done 
so  or  not,  is  the  matter  now  to  be  ascertained :  if  they  have,  this 
decree  must  be  opened. 

The  decree  was  signed  as  of  July  term;  and,  as  has  been 
observed  before,  all  decrees  and  orders  of  the  court  being  held 
entirely  subject  to  its  control  during  the  term,  if  an  answer  had 
come  in  at  any  time  previous  to  the  close  of  that  term,  the  decree 
by  default  would  have  been  set  aside,  and  the  defence  let  in.(o) 
No  decree  by  default,  under  the  rule,  will  be  signed  until  after  the 
first  four  days  of  the  term  ;  but  after  that  an  ansAver  may  be  filed, 
and  the  decree  rescinded,  at  any  time  before  the  first  day  of  the  next 
succeeding  term.(p)     On  turning  to  the  proceedings,  in  the  origi- 


(o)  When  this  opinion  was  delivered  there  were,  as  it  appears  there  had  always 
been,  four  regular  terms  of  this  court,  in  each  year,  for  the  return  of  process,  &,c. 
But  the  continuance  of  the  sittings,  which  in  this  and  all  other  similar  cases,  is 
spoken  of  as  the  term,  was  irregular  and  indefinite.  When  it  was  presumed,  that  all 
the  cases,  ready  for  hearing,  had  been  called  up,  the  sittings,  or  as  they  have  been 
most  usually  called,  the  terms,  were  closed,  by  a  memorandum  to  that  effect  entered 
upon  the  docket,  by  order  of  the  Chancellor.  This  was  attended  witli  inconveni- 
ence; for  although  the  Court  of  Chancery  has  terms,  it  is  not,  in  the  sense  of  the 
common  law,  a  term  court;  but  is  always  open,  (1  Eep.  Ca.  Chan.  Earl  of  Oxford's 
case,  6.  Croivley^s  case,  2  Swan,  11.)  I  therefore  deemed  it  proper,  that  the  rules 
might  be  better  understood  and  enforced,  and  tor  the  despatch  of  business,  to  fix  by 
the  rule  of  the  58th  of  April,  1S27,  the  close  as  well  as  the  commencement  of  the 
sittings  of  each  term. 

(p)  Clapham  v.  Clafham. — This  was  a  bill  filed  on  the  9th  Januarj%  1810,  to 
foreclose  a  mortgage  and  have  the  property  sold.  It  stated,  that  the  defendant  was 
not  a  resident  within  the  State,  and  prayed  publication,  which  was  ordered  and  made. 

4th  October,  1810. — Kilty,  C/(«?!ceZZor.— Upon  the  argument  that  took  place  at  the 
present  term,  respecting  the  above  suit,  the  Chancellor  is  of  opinion,  that  it  comes 
within  the  provision  made  by  the  9th  section  of  the  act  of  1799,  ch.  79,  and  that  he 
is  authorized  to  take  the  bill  pro  confesso,  although  he  has  also  by  the  terms  of  the 
act  a  power  to  issue  a  commission.  Under  the  act  of  1795,  ch.  88,  after  a  publica-f 
tion  against  an  absent  defendant,  and  after  the  expiration  of  the  time  limited,  he 
might,  at  any  time  before  a  decree,  appear  in  person  or  by  a  solicitor,  on  which  the 
same  proceedings  were  to  take  place  as  if  he  had  regularly  appeared.  This  privi- 
lege occasioned  an  unreasonable  delay ;  because  it  was  easy  for  the  absent  defendant 
to  appear  by  his  solicitor,  and  he  could  not  be  brought  in  by  an  attachment  for  want 


BURCH  V.  SCOTT.  127 

nal  case,  it  appears,  that  there  had  been  a  return  agamst  Scott,  the 
defendant,  attached  for  not  appearing ;  in  consequence  of  which, 
on  the  30th  of  March,  1824,  the  usual  order  nisi  was  passed, 
requiring  him  to  appear  and  answer  by  the  fourth  day  of  the  next 
July  term,  which  commenced  on  the  thirteenth,  and  closed  on  the 
twenty-fourth  day  of  the  same  month.  Therefore,  at  any  time  after 
the  17th  day  of  July,  1824,  the  parties  might  have  obtained  the 
decree,  which  was  signed  on  the  4th  of  August,  1825. 

That  they  did  not  obtain  it  sooner  can  only  be  imputed  to  their 
own  misunderstanding,  negligence,  or  indulgence ;  because,  the 
court,  on  application,  would  have  inspected  the  proceedings,  and 
have  done  on  the  next  day,  after  that  day,  precisely  that  which  it 
did,  when  called  upon  one  year  after.  The  plaintiffs  in  that  case, 
then,  owning  to  tlieir  own  negligence  or  indulgence,  stood  in  no 
better  situation  at  the  July  term,  1825,  than  they  did  at  the  July 

of  an  answer.  The  act  of  1799,  appears  to  have  provided  a  remedy  for  this  incon- 
venience,— the  9th  section,  relating  to  defendants  appearing  agreeably  to  an  order, 
limiting  a  day  for  such  appearance,  which  is  done  by  the  order  of  publication.  An 
appearance  was  entered  for  the  defendant  at  July  term,  but  no  answer  has  been  put 
in.  It  is  urged  by  the  counsel  for  the  defendant,  that  the  bill  ought  not  to  be  taken 
pro  confesso,  but  that  a  commission  should  be  issued,  under  which  payments  of  a  part 
of  the  mortgage  debt  might  be  proved.  But  it  was  in  the  power  of  the  defendant  to 
put  in  his  answer  alleging  such  payments,  on  which  an  opportunity  would,  of  course, 
have  been  given  for  the  proof  of  them  by  commission,  or  before  the  auditor.  There 
is  nothing  to  shew,  that  it  is  essential  to  the  justice  of  the  case,  that  a  commission 
should  be  issued,  or  even  that  it  should  be  put  before  the  auditor,  the  claim  being 
prima  facie  established  by  the  mortgage,  and  the  affidavit  of  the  complainant.*  But 
in  order  that  injustice  may  not  be  done  to  the  defendant,  inasmuch  as  the  time 
usually  limited  for  bringing  in  the  money  due  in  such  case  will  go  beyond  the  sitting 
of  December  term,  the  decree  is  made  not  to  be  absolute  until  tlie  10th  day  of  that 
term,  during  which,  on  sufficient  cause  being  shewn,  such  alteration  may  be  made  as 
shall  then  appear  necessary.  Decreed,  that  the  property  in  the  proceedings  men- 
tioned be  sold,  &.C.  

Hepburn  v.  Mollinson. — The  defendants,  having  been  summoned,  had  failed  to 
appear,  upon  which  the  plaintiff  obtained  an  interlocutory  decree,  in  the  usual  form, 
under  the  act  of  1820,  on  the  14th  of  July  1S21.  After  which,  on  motion  by  the 
defendants,  Caleb  D.  Goodwin  and  others,  to  appear  and  to  have  the  interlocutory 
decree  rescinded — 

ISth  July,  1821, — Kilty,  Chancellor, — Ordered,  That  the  decree  be  rescinded, 
together  with  the  order  for  the  commission.  This  order  is  made  under  the  general 
power  of  the  court,  being  the  same  term ;  and  not  on  the  third  section  of  the  act  of 
1S20,  ch.  161,  which  may  apply  where  the  term  is  past.  An  answer  is  not  therefore 
required  with  the  appearance,  but  the  suit  will  stand  as  if  an  appearance  had  been 
entered  in  the  usual  way. 

*  It  appears  that  the  plaintiff's  affidavit  of  the  sum  due,  in  tlie  usual  form,  made  before 
a  justice  of  the  peace,  was  endorsed  on  the  mortgage. 


]28  BURCH  V.  SCOTT. 

term,  1824;  because,  their  decree  by  default,  according  to  the 
estabhshed  practice,  was  liable  to  be  corrected  or  revoked  dur- 
ing the  term  at  which  it  was  signed.  The  July  term,  1825,  com- 
menced on  the  12th  of  that  month,  and  was  not  finally  closed 
until  the  17th  of  August  following.  Consequently,  the  decree 
was  not  final  and  absolute  until  that  day.  After  which  it  could 
only  be  opened  or  affected  by  an  original  bill,  or  a  bill  of  review. 
The  bill  to  set  aside  tlais  decree  was  not  filed  until  the  15th  day 
of  November,  1825 ;  and  Scott,  one  of  the  plaintiffs  here,  was 
not  charged,  on  the  record  of  the  original  case,  with  a  default, 
which  might  have  been  fixed  upon  him  by  a  decree,  until  the 
18th  day  of  July,  1824,  making  a  space  of  about  fifteen  months  of 
apparent  negligence,  which  is  to  be  accounted  for,  justified,  or 
excused.  To  find  which,  we  must  examine  the  bill  and  answer 
in  this  case. 

That  the  defendant,  Scott,  in  the  month  of  July,  1824,  and 
before  he  could  have  been  finally  fixed  with  a  decree  by  default, 
had  made  an  answer,  which  was  ready  to  be  put  on  file  ;  that  he 
had  charged  his  solicitor  with  the  care  of  it,  who  had  attempted 
to  forward  it  to  the  register,  to  be  put  on  file ;  are  facts  proved  and 
not  denied.  It  also  appears,  that  under  a  firm  belief  that  his 
answer  had  reached  its  destination,  and  was  on  file,  his  solicitor 
proposed  to  the  solicitor  of  the  plaintiff,  to  agree  upon  some  day 
when  the  cause  should  be  argued  by  them.  The  defendant  in  this 
case,  Thomas  Burch,  in  his  answer,  states,  that  thereupon  his 
counsel  MTOte  for  a  copy  of  Scotfs  answer,  and  was  informed  that 
it  had  not  been  filed ;  which  information  w^as  shortly  afterwards 
communicated  to  Scotfs  counsel ;  which  after  a  considerable  inter- 
val was  again  mentioned  to  him.  And  it  is  expressly  charged, 
that  Scott  himself  knew  the  fact  before  the  decree  was  signed. 
That  Scotfs  solicitor  was  very  negligent  is  most  manifest.  But  it 
does  not  clearly  appear,  that  Scott,  himself,  is  chargeable  with 
negligence  to  a  greater  extent  than  about  four  or  five  months  ;  for 
it  is  not  said  by  Burch,  in  his  answer,  how  long  it  was  before  the 
date  of  the  decree,  that  Scott  was  informed  his  answer  had  not 
been  filed :  but  it  would  seem,  that  the  counsel  for  the  plaintiffs  in 
that  case,  to  be  assured  of  the  fact  whether  Scotfs  answer  was 
filed  or  not,  inquired  for  it,  and  searched  the  papers  so  late  as 
about  the  first  of  July,  1825.(9) 

(y)  Robsoji  V.  Cranwell,  1  Dick.  61. 


BURCH  V.  SCOTT.  129 

It  is  admitted  by  the  defendants,  that  the  decree  of  the  4th  of 
August  last  is  for  a  greater  amount  than  it  ought  to  have  been 
given  for ;  and  that  it  has  awarded  to  them  three  hundred  and 
ninety-two  dollars  and  ninety  cents  more  than  was  actually  due,  and 
more  than  they  had  any  right  whatever  to  claim  or  recover.  In 
this  respect,  therefore,  it  confessedly  requires  revision  and  correc- 
tion. It  is  a  decree  by  default,  and  not  upon  the  merits.  But 
Scott  avers  upon  oath,  that  he  has  a  good  defence  against  the 
whole  claim  of  the  defendants,  which  he  prays  to  have  let  in.(r) 
And  it  is  not  alleged  by  his  opponents,  that  they  have  lost,  or  been 
deprived  of  any  means  of  sustaining  their  pretensions. (s)  In 
short,  imder  all  the  peculiar  circumstances  of  this  case,  it  appears 
to  be  fit  and  proper,  that  the  decree  of  the  4th  of  August  last 
should  be  revoked ;  but  it  must  be  upon  the  terms  of  payino-  all 
costs. (^) 

Whereupon,  it  is  decreed,  that  the  decree  of  this  court,  passed 
and  signed  on  the  4th  day  of  August,  1825,  in  the  case  wherein 
Thomas  Burch,  administrator  de  bonis  ncn  of  Jesse  Burch,  Fielder 
Burch,  and  others,  are  plaintiffs,  against  William  Scott,  defendant, 
together  with  all  the  proceedings  in  the  said  suit  subsequent  to  the 
fourth  day  of  July  term,  1824,  be  and  the  same  are  hereby  revoked, 
rescinded,  and  annulled.  And  it  is  further  decreed,  that  the  said 
Williairb  Scott  do  forthwith  pay  unto  the  complainants  all  the  costs 
which  they  may  have  incurred  in  the  prosecution  of  the  said  suit 
subsequent  to  the  4th  day  of  July  term,  1824,  to  be  taxed  by  the 
register.  And  it  is  further  decreed,  that  the  answer  of  the  said 
Scott,  pui"porting  to  have  been  received  and  filed  on  the  7th  of 
December,  1825,  in  the  said  case,  be  and  the  same  is  hereby 
allowed  to  be  filed  as  his  answer  in  the  said  suit,  subject  to  all  legal 
exceptions  thereto. 

From  this  decree  the  plaintiffs  in  the  original  bill  appealed,  and 
the  Court  of  Appeals  havdng  reversed  this  decree  without  quahfi- 
cation,  (1  G.  &  J.  393,)  the  plaintiffs  again  sued  out  a  feri 
facias  upon  the  decree  of  the  4t}i  of  August,  1825,  on  which  exe- 
cution, it  is  understood,  that  the  plaintiffs,  as  before,  endorsed  a 
credit  for  so  much  as  they  admitted  had  been  awiirded  to  them 
more  than  was  due. 

(r)  Stanard  r.  Rogers,  4  Hen.  k  Man.  4SS;  Envin  r.  Vint,  6  Mun.  2fi7. — 
(«)  Wooster  v.  Woodhull,  1  John.  C.  C.  539.— (l)  November,  1787,  ch.  i),  s.  6. 

17 


130  HALL  V.  HALL. 


HALL  V.  HALL. 

Wherever  a  testator  devises  a  part  of  his  estate  to  one  who  has  a  claim  upon  it  inde- 
pendently of  him  ;  it  is  a  settled  princijile  of  equity,  that  the  devisee  shall  not  be 
allowed  to  disappoint  the  express  or  obvious  intention  of  the  testator  by  taking 
both  ;  but  shall  be  put  to  his  election  to  take  the  one  or  the  other. 

The  mode  of  reviving  a  suit  in  equity,  according  to  the  act  of  1820,  ch.  161,  which 
had  abated  by  death.  But  that  act  being  cumulative,  the  party  may  revive 
either  in  that  mode  or  by  bill.  The  new  mode  of  reviving  applies  to  no  case, 
except  that  of  a  devisee,  where  a  proper  bill  of  revivor  will  not  lie  ;  nor  does  it 
apply  to  an  abatement  by  marriage ;  or  to  an  abatement  after  a  decree. 

This  bill  was  filed  on  the  11th  of  September,  1816,  ^y  William 
White  Hall,  against  William  Hall  and  Edward  Hall,  as  the  exe- 
cutors of  the  late  Thomas  Hall,  and  against  George  W.  Hall  and 
others,  as  his  children  and  legatees.  The  object  of  the  bill 
was,  to  recover  a  legacy  given  by  the  deceased  to  the  plaintiff;  and 
the  defence  made  by  the  answers  of  the  defendants  was,  that  the 
plaintiff,  who  claimed  as  legatee  under  the  will,  had  taken  and  held 
certain  lands  as  heir  in  tail  in  opposition  to  the  will ;  and  therefore 
ought  not  to  be  allowed  to  sustain  this  suit  for  the  legacy. 

After  this  bill  was  filed,  the  plaintiff  died,  and  Elizabeth  Hall, 
his  administratrix,  by  her  petition  prayed  to  be  admitted  as  plain- 
tiff in  his  place. 

10th  December,  1823. — Johnson,  Chancellor. — Ordered,  on 
examining  this  application  and  the  accompanying  exhibits,  that 
the  petitioner  be,  and  she  is  hereby  admitted  a  complainant,  and 
authorized  to  conduct  the  suit ;  in  doing  which,  the  rules  laid  down 
by  my  predecessor,  in  the  case  of  Labes  v.  Monker  at  July  term, 
1821,  must  be  pursued. (a) 

(a)  Labes  v.  Monker. — This  bill  was  fifed  on  the  8th  of  June,  1820,  by  James 
Labes,  against  William  Monker  and  John  C.  S.  Monker,  to  set  aside  a  conveyance 
of  a  certain  chattel  real,  nrade  by  the  defendant  William  to  the  defendant  Jolni,  on 
the  ground,  that  it  had  been  fraudulently  made  to  defeat  a  judgment  at  law  obtained 
by  the  plaintiff  against  the  defendant  William  ;  upon  which  judgment  the  plaintiff 
had  issued  an  execution,  and  had  it  returned  witliout  its  having  been  delivered  to  the 
sheriff;  after  which  he  had  issued  another  fieri  facias,  upon  which  the  sheriff  had 
returned  nulla  bona.  The  plaintiff,  by  his  bill,  prayed,  tliat  the  deed  might  be 
declared  void  ;  and,  that  he  might  be  relieved  according  to  the  equity  and  nature  of 
his  case. 

The  defendants  were  summoned,  and  both  of  them  appeared,  but  failed  to  answer 
the  bill.  After  which  the  solicitor  of  the  plaintiff  came  into  court,  and  suggested 
his  client's  death,  and  moved,  that  his  legal  representatives  might  be  made  parties. 


HALL  V.  HALL.  131 

After  which  this  new  plaintiff,  Elizabeth  Hall,  having  abated  her 
suit  by  her  marriage  with  John  B.  Bayliss,  they  filed  their  petition, 
stating  the  fact,  and  praying  to  have  it  revived  in  the  mode  allowed 
by  the  act  of  1820,  ch.  161 ;  which  petition  they  submitted  without 
argument. 

30th  October,  1826. — Bland,  Chancellor. — It  is  perfectly  obvious, 
tiiatthe  fourth,  fifth,  sixth,  and  seventh  sections  of  the  act  of  1820, 
ch.  161,  have  done  nothing  more  than  to  authorize  a  party  to 
pursue  the  course  therein  prescribed  in  place  of  a  bill  of  revivor. 
It  is  declared,  that  if  a  party  shall  die,  "  it  shall  not  be  necessary 
to  file  a  bill  of  revivor,"  but  that  this  new  method  may  be  taken 
for  renovating  the  suit.  The  act  has  neither  expressly  nor  impliedly 
abrogated  the  mode  of  reviving  a  suit  by  bill  of  revivor ;  but  has 
only  given  this  new  method  of  proceeding  as  an  additional  mode 
of  attaining  that  object,  which  before  could  only  be  effected  by  a 


VSihJidy,  1821. — Kiltv,  Chancellor. — A  jnotion  was  made  by  counsel  for  a  new 
party  to  be  entered  on  the  death  of  the  complainant,  under  the  act  of  1820,  ch.  161 ; 
and  some  obsenations  were  made  by  other  counsel,  with  a  view  to  the  future  practice. 

On  considering  the  act,  the  following  decisions  are  made  as  to  the  present  motion, 
which  will,  of  course,  serv^e  in  future  cases. 

1st.  The  application  must  be  by  petition  or  motion,  reduced  to  writing,  suggesting 
the  death,  and  praying  to  be  made  a  party. 

2d.  By  this  act  the  court  is  to  be  satisfied  of  the  death,  and  of  the  applicant's  being 
the  legal  representative ;  which  cannot  be  done  without  some  proof  The  proof 
required,  will  be  an  exhibition  of  the  letters,  or  an  exemplification  tliereof,  or  a 
certificate  of  the  register,  under  seat,  of  their  having  been  issued ;  or  an  affidavit  of 
the  death  and  administration. 

3d.  An  order  will  then  be  passed,  by  the  court,  to  admit  such  applicant  as  a  party 
in  place  of  the  deceased. 

4th.  A  minute  of  the  application,  and  of  the  order,  is  to  be  entered  on  tlie  dodket 
by  the  register. 

5th.  The  notice  of  the  admission  required  by  the  act  shall  be  given  to  the  opposite 
party  or  parties,  if  residing,  or  found  within  the  State,  by  serving  an  attested  copy 
of  the  order,  or  leaving  it  at  their  usual  place  of  abode  ;  on  proof  of  which  being  filed, 
the  new  paity  may  proceed  in  the  suit,  and  not  before. 

6th.  If  the  opposite  party  resides  out  of  the  State,  a  form  of  publication  must 
be   prepared,   stating  briefly  the   application,   and  order  of   admission,   with  the 

following   conclusion,   viz.  "It  is  thereupon   ordered,  that  the  said  give 

notice  of  his  admission  as  aforesaid,  by  causing  a  copy  of  this  order  to  be  published 

at  least  once  in  each  of  three  successive  weeks  in  the  ,  to  the  end,  that  the 

opposite  party  may  shew  cause,  if  any  he  hath,  to  the  contrary,  on  or  before 
the day  of ." 

In  deciding  on  the  const ruclion  of  the  4th  section  of  the  act,  I  have  considered, 
that  it  is  not,  in  any  way,  affected  by  the  directions  in  the  7th  section  ;  and  also,  that 
it  is  not  to  be  regulated  by  the  practice  of  the  courts  of  law,  under  the  act  of  178.5, 
the  words  of  which  are,  that  the  appearance  of  the  executor,  &.C.,  shall  be  admitted 
to  be  entered. 


132  HALL  V.  HALL. 

bill  of  revivor.  But  it  is  a  new  course  of  proceeding,  which  can 
only  be  used  in  place  of  a  mere  naked  bill  of  revivor,  by  which  the 
person  in  whom  the  title  is  vested,  is  the  sole  fact  to  be  ascertained, 
and  nothing  more.  It  can  be  resorted  to  in  no  case,  except  that 
of  a  devisee,  where  a  proper  bill  of  revivor  will  not  lie ;  nor  can  it 
be  used  in  any  case  for~  the  purpose  of  performing  the  office  of  a 
mere  bill  of  revivor,  but  where  an  abatement  has  happened  by 
death  ;{h)  for,  it  is  expressly  confined  to  the  case  of  a  bill  in 
chancery,  where  "  either  or  any  of  the  parties  shall  die  or  shall 
liave  died.''^  And  not  being  repugnant  to,  nor  having  superseded 
any  other  mode  of  proceeding ;  nor  authorized  or  contemplated 
the  revival  of  a  suit  in  any  case  where  it  was  before  deemed  illegal 
or  unnecessary  to  have  it  revived  ;  it  follows,  that  it  can  apply  to 
no  case  like  the  present,  where  the  suit  has  been  abated  by  the 
marriage  of  a  female  plaintiff;  nor  can  it  authorize  or  require  a 
revival  on  the  marriage  of  a  female  defendant,  which,  not  operating 
as  an  abatement,  did  not  call  for  a  revival  ;(c)  nor  can  it  apply  to 
any  case,  except  that  of  a  devisee,  where,  because  of  the  new  party's 

(6)  It  seems  to  have  been  the  ancient  practice  of  this  court,  in  such  cases  of  abate- 
ment, to  enter  upon  the  docket  a  suggestion  of  the  death  of  the  party ;  and  then,  as 
a  matter  of  course,  to  add,  "Leave  given  to  file  a  bill  of  revivor;"  in  all  such  cases 
as  might  be  revived,  (  Wilmot  v.  Taylor,  1771,  Chan.  Pro.  lib.  W.  K.  No.  1,  page  31 — 
a  similar  cntrj  1762,  Chan.  Pro.  lib.  D.  D.  No.  J.  page  57.)  But  tliis  practice  was 
altered . 

July  term,  1806. — Kilty,  Chancellor. — Ordered,  that  where  an  entry  has  been  made 
on  the  docket  of  "  Leave  to  file  a  Bill  of  Revivor,"  in  any  case  which  ought  to  abate 
by  the  death  of  a  party,  the  said  entry  be  stricken  out,  and  the  suit  entered  "  abated." 
And  that  such  suit  be  not  brought  forward  or  continued  on  the  docket  until  a  bill  of 
revivor  shall  be  filed  ; — and  that  in  fiiture  cases  the  entries  be  made  according  to  this 
order.  The  Chancellor  considering,  that  the  provision  in  the  act  of  17S5,  ch.  SO,  on 
this  subject,  extends  only  to  suits  at  law 

(c)  The  act  of  1831,  ch.  311,  s.  14,  declares,  "that  no  suit  in  equity  shall 
abate  by  the  marriage  of  any  of  the  parties,"  &,c.,  which,  it  is  presumed,  must  be 
construed  to  mean  any  of  the  parties,  plaintiffs ;  and  that,  although  the  suit 
may  have  been  actually  abated  by  the  marriage  of  a  female  plaintiff,  yet  that 
it  may,  as  therein  prescribed,  be  revived. 


Manning  v.  Mills,  1722.— Bill  abated,  with  costs,  by  reason  of  the  complainant's 
intermarriage  with  one  Combs. —  Chancei-y  Records,  lib.  P.  L.  785. 

Taylor  i;.  Gordon,  1728. — Sen'ice  of  subpojna  being  proved.  Ordered,  attachment 
to  issue  unless  appearance  July  court  next.  Petition  for  dedimits  to  take  answer. 
Dcdiiuus  issued.  Ruled  attachment  to  issue  for  answer,  and  contempt  to  be  paid  and 
further  process  unless  answer  within  ten  days  of  this  court.  Attachment.  The 
defendant  being  lately  married  to  Nicholas  Ridgely,  ordered,  that  he  be  made  party, 
and  that  attachment  of  contempt  issue  against  him  and  defendant,  Ann,  his  wife. 
After  which,  Nicholas  came  in  accordingly  with  his  wife,  and  answered. — Chancery 
Records,  lib.  P.  L.  1001—1083. 


HALL  V.  HALL.  133 

not  claiming-  by  operation  of  law  only,  a  mere  bill  of  revivor  will 
not  lie ;  nor  can  it  be  resorted  to  by  a  defendant  as  a  means  of 
reviving  the  suit  in  any  case,  except  after  a  decree  when  he  can 
derive  a  benefit  from  the  further  proceedings,  and  the  plaintiff 
neglects  to  revive  :  for  no  man  can  be  compelled  to  revive  and 
prosecute  a  suit,  who  can  have  no  possible  advantage  from  \\.{d) 
And  as  it  cannot  be  presumed,  that  the  mode  of  proceeding  pre- 
scribed by  this  law  was  intended  to  stand  as  an  addition  to  any 
pre-existing  and  similar  mode  of  proceeding,  which  was,  in  its 
nature,  more  cheap,  simple,  and  expeditious  ;  it  therefore  cannot 
be  considered  as  having  been  intended  to  apply  to  any  case  of  an 
abatement,  after  a  decree,  where  the  suit  may  and  ought  to  be 
revived  by  a  subpoena  scire  facias. [e) 

It  must  also  be  recollected,  that  the  form  of  proceeding,  under 
this  act  of  assembly,  as  laid  down  in  the  case  of  Labes  v.  Monker, 
refers  only  to  a  case  where  the  representative  of  a  deceased  party 
applies  to  be  admitted  in  his  place  ;  for,  the  act  evidently  contem- 
plates a  different  mode  of  proceeding,  where  the  surviving  party 
proposes  to  revive  the  suit  against  the  representatives  of  a  deceased 
party.  But  as  it  is  sufficiently  obvious,  that  a  suit  cannot  be  revived 
in  the  mode  prescribed  by  this  act,  which  has  been  abated,  as  in 
this  instance,  by  the  marriage  of  a  female  plaintiff, 

It  is  therefore  ordered,  that  this  petition  be  dismissed,  with  costs, 
to  be  taxed  by  the  register. 


Whereupon  Bayliss  and  wife  filed  a  bill  of  revivor,  stating  the 
fact  of  their  marriage,  which  being  admitted,  and  an  answer  to 
the  bill  of  revivor,  for  that  purpose,  having  been  dispensed  with, 
by  consent,  and  the  case  considered  as  having  been  thus  revived, 
it  was  brought  before  the  court  accordingly  upon  its  merits. 

\st  January,  1827. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing,  and  the  solicitors  of  the  parties  having  been 
fully  heard,  the  proceedings  were  read  and  considered. 

This  suit  has  been  instituted  to  recover  a  legacy  given  by  the 
late  Thomas  Hall  to  his  son  William  W.  Hall,  the  late  plaintiff. 
This  Thomas  Hall,  in  the  lifetime  of  his  wife,  had,  besides  the 
late  complainant,  William  W.  Hall,  seven  other  children  ;  and  was 
then  in  possession  of  personal  property  to  a  considerable  amount  in 

(rf)  1  Mont.  Dig.  303 ;  2  Mad.  Chan.  526  ;  Beams'  Plea.  237.— (e)  1  Harr.  Pra, 
Chan.  669 ;  2  Fow.  Ex.  Pra.  419;  Mitf.  PI.  69. 


134  HALL  V.  HALL. 

value  ;  and  was  seized  of  two  tracts  of  land,  as  tenant  in  tail  male ; 
and  of  other  parcels  of  land,  in  fee  simple.  Under  which  circum- 
stances he  made  his  will,  Avherein  he  says  :  "  I  request  my  execu- 
tors, hereafter  named,  to  dispose  of  all  my  estate,  both  real  and 
personal,  except  some  legacies,  hereafter  mentioned,  to  the  best 
advantage,  and  after  having  first  paid  all  my  just  debts,  out  of  the 
sales  of  my  personal  property,  to  pay  unto  my  wife  Isabella,  one 
third  part  of  the  remaining  balance,  which  the  law  gives  her." 
And  he  then  goes  on  to  dispose  of  his  estate  among  his  children ; 
giving  to  his  son  William  W.  Hall,  the  late  complainant,  one 
thousand  pounds. 

Soon  after  making  this  will,  Thomas  Hall  died.  Whereupon 
the  late  plaintiff,  William  W.  Hall,  as  heir  in  tail,  entered  upon, 
held  and  disposed  of  the  entailed  estate  to  his  own  use.  In  con- 
sequence of  which,  Edward  Hall  and  William  Hall,  the  executors 
of  Thomas  Hall,  deceased,  refused  to  pay  Williayn  W.  Hall  the 
legacy  given  him  by  his  late  father ;  alleging,  that  he  could  not  be 
thus  permitted  to  disappoint  the  will  of  their  testator,  by  taking 
both  the  estate  tail  and  the  legacy  ;  since  the  estate  tail  constituted 
a  material  part  of  the  fund,  out  of  which  the  legacy  w^as  given. 
And,  to  shew^  that  such  was  the  intention  of  their  testator,  they 
exhibited,  as  a  part  of  their  answer,  a  paper  purporting  to  be  a 
schedule,  made  by  him,  of  all  his  estate,  and  upon  which,  as  they 
allege,  he  predicated  his  will.  But  this  schedule  has  neither  been 
admitted  nor  established  by  proof;  and  therefore  cannot  be  permitted 
to  have  any  bearing  w^hatever  upon  this  case.  From  the  pleadings, 
proofs,  and  agreements  of  the  parties,  it  appears,  that  the  whole 
controversy  has  been  reduced  to  a  single  question  ;  tliat  is,  whether 
William  W.  Hall  can  be  put  to  his  election  to  take  either  tlie 
entailed  estate  or  the  legacy  ;  or  be  allowed  to  have  both  ? 

Wherever  a  testator  devises  a  part  of  his  estate  to  one,  who  has 
a  claim  upon  it  independently  of  him ;  it  is  a  settled  principle  of 
equity,  that  the  devisee  shall  not  be  allowed  to  disappoint  the 
express,  or  obvious  intention  of  the  testator  by  taking  both ;  to 
insist  upon  his  claim,  to  its  full  extent,  and  also  to  take  all  the 
benefit  bestowed  upon  him  by  the  will.  The  devise,  in  such  cases, 
is  considered,  in  equity,  as  having  been  made  upon  an  implied 
condition,  that  the  claim  shall  be  waived  ;  and  therefore  the  devisee 
will  be  bound  to  make  his  election  to  abide  by  the  will,  and  take 
under  it  entirely,  relinquishing  his  claim ;  or  to  abandon  the  will 
altogether. 


HALL  V.  HALL.  135 

But  then  the  intention  of  the  testator,  that  such  devisee  should 
be  put  to  an  election,  must  be  either  distinctly  expressed,  or  very 
strongly  manifested  by  facts  and  circumstances ;  for,  no  one  can 
be  stripped  of  his  rights  by  guessing  or  conjecture.  It  must 
distinctly  appear,  that  the  claim  is  irreconcilable  and  incompatible 
with  the  devise;  or  that  to  sustain  the  claim,  would  throw  the 
testator's  estate  into  a  channel  entirely  different  from  that  m  which 
he  had  placed  it  by  his  will.  To  prevent  such  a  perversion,  or 
disappointment  of  the  express,  or  clearly  manifested  intention  of 
the  testator,  a  court  of  equity  will,  by  a  strong  operation  of  its 
powers,  put  the  devisee  to  an  election,  (y)  But  there  is  no  instance 
of  a  devisee  being  made  to  elect  upon  slight  presumptions  or 
inferences ;  or  where  the  will  might  have  its  full  effect  without 
impairing  the  obligation  of  the  claim ;  or  where  the  testator  has 
property,  which  is  absolutely  his  own,  answering  fully  to  the 
description  of  that  spoken  of  in  his  will,  and  by  which  all  its 
expressions  may  be  satisfied.  (^) 

In  this  case,  it  appears  that  the  testator  had  a  considerable  real 
estate,  in  fee  simple,  by  which  his  expressions,  "  all  my  estate,  real 
and  personal,"  may  be  amply  gratified  without  embracing  the 
entailed  estate.  There  is  nothing  upon  the  face  of  the  will  itself, 
nor  any  thing  in  the  circumstances  under  which  it  was  made,  which 
necessarily  or  very  clearly  shews  an  intention  to  comprehend  the 
entailed  as  well  as  the  fee  simple  estate.  Although  the  testator 
might,  during  his  lifetime,  have  aliened  the  lands  which  he  held  as 
tenant  in  tail,  by  a  mere  deed  of  bargain  and  sale,  legally  executed 
and  recorded  ;  and  thus  have  barred  the  right  of  the  heir  in  tail ; 
yet,  it  is  very  certain,  that  he  could  not  devise  those  lands  by  his 
last  will  and  testament. (A)  Upon  the  w^hole,  then,  it  is  my  opinion, 
that  the  plaintiffs  are  entitled  to  recover;  and  the  amount  in 
such  case  having  been  agreed  upon ;  it  is  thereupon. 

Decreed^  that  Edward  Hall,  the  surviving  executor  of  the  late 
Thomas  Hall,  forthwith  pay  unto  the  claimants,  John  B.  Bayliss 
and  Elizabeth  his  wife,  as  administrators  of  William,  W.  Hall 
deceased,  the  sum  of  $2666  66,  or  that  the  said  defendant  bring 
the  same  into  this  court  to  be  paid  to  the  said  complainants ;  the 


(/)  Noys  I".  Mordauiit,  2  Vcrn.  581 ;  2  Mad.  Chan.  51 ;  Blake  v.  Bunburj-, 
4  Bro.  C.  C.  21 ;  Sheddon  v.  Goodrich,  8  Ves.  482 ;  Dillon  r.  Parker,  1  Swan,  .359. 
(g)  Pow.  Devi.  465. — {h)  Paca  v.  Forwood,  2  H.  &  McH.  175;  Laidler  i'.  Young's 
Lessee,  2  H.  &  J.  69. 


136  GOALE  V.  CHASE. 

said  sum  of  lawful  money  being  the  value,  and  in  satisfaction  of 
the  legacy  given  by  the  late  Thomas  Hall  to  the  late  William  W. 
Hall,  as  in  the  proceedings  mentioned.  Decreed,  that  the  defendant 
and  complainants  each  pay  their  own  costs.  Decreed,  that  the  bill 
of  complaint  be  dismissed  as  to  all  the  other  defendants,  with  costs. 


From  this  decree  the  defendant  appealed,  and  on  the  22d  July, 
1829,  it  was  affirmed  by  the  Court  of  Appeals. 


COALE  V.  CHASE. 


The  allegations  in  tiie  body  of  an  answer,  or  plea,  should  be  positive,  otherwise  the 
issue  would  be  joined  on  a  mere  statement  of  the  belief  of  the  parties,  not  upon 
their  allegations  oi'  fact.  Yet  to  obtain  a  dissolution  of  an  injunction,  it  is  sufficient 
that  an  executor  or  administrator,  in  stating  facts,  which  from  the  nature  of  the 
case,  could  only  have  been  personally  known  to  his  testator,  or  intestate,  should 
say,  that  they  are  "  as  he  is  informed  and  verily  believes,"  so  and  so.  It  is  suffi- 
cient if  the  affidavit  be  so  absolute  and  positive,  when  taken  in.  connexion  with  the 
body  of  the  answer,  as  to  subject  the  party  to  a  prosecution  for  perjury ;  if  the 
matters  stated  should  be  false. 

This  bill  was  filed  in  Harford  County  Court  on  the  13th  of 
October,  1826,  by  Skipwith  H.  Coale  and  Eliza  Matilda  Coale, 
against  Hannah  Kitty  Chase,  in  which  it  is  alleged,  that  the  plain- 
tiff, Skipwith,  had  given  his  bond  to  the  defendant  Hannah  for  the 
payment  of  the  sum  of  five  hundred  dollars,  upon  certain  trusts 
and  conditions,  in  favour  of  her  daughter  the  plaintiff,  Eliza  ;  but 
that  the  defendant  Hannah,  regardless  of  this  their  special  agree- 
ment, had  brought  suit  against  the  plaintiff,  Skipwith,  upon  the 
bond,  and  obtained  judgment.  Whereupon  the  plaintiffs  prayed 
an  injunction  to  stay  execution,  and  for  relief  according  to  the 
nature  of  their  case.  An  injunction  w^as  granted  as  prayed.  The 
defendant  filed  her  answer,  and  obtained  an  order  under  the  act  of 
1824,  ch.  196,  to  remove  the  case  to  this  court,  and  the  proceed- 
ings were  accordingly  filed  here  on  the  25th  of  November,  1826  ; 
after  which  the  defendant  gave  notice  of  her  motion  to  dissolve  the 
injunction,  and  the  case  was  brought  before  the  court. 

3rf  January,  1827. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing  on  the  motion  to  dissolve  the  injunction,  the  soli- 
citors of  the  parties  were  heard,  and  the  proceedings  read  and  con- 
sidered. 


COALE  V.  CHASE.  137 

The  allegations  in  the  body  of  an  answer  or  plea  should  be 
positive,  otherwise  the  issue  would  be  joined  on  a  mere  statement 
of  the  belief  of  the  parties,  not  upon  their  allegations  of  fact.  But 
it  is  the  law  arising  out  of  the  facts,  not  merely  from  the  belief  of 
the  parties,  w^hich  is  to  be  determined. (a)  Yet  where  an  injunction 
has  been  granted  against  an  executor  or  administrator,  it  is  sufficient 
for  him,  in  order  to  obtain  a  dissolution  of  it,  to  state,  as  to  any 
facts,  in  regard  to  which  the  bill  calls  for  an  answ^er,  and  which 
must,  from  the  nature  of  things,  have  rested  in  the  knowledge  of 
his  testator  or  intestate,  that  they  are  as  he  "  is  informed  and 
verily  believes,"  so  and  so. (6)  But  the  answer  of  this  defendant, 
in  the  body  of  it,  has  spoken  so  distinctly  and  positively  as  to  the 
facts ;  and  thus,  so  entirely  sworn  away  the  equity  of  the  bill,  that 
I  could  have  no  hesitation  in  dissolving  the  injunction,  at  once, 
were  it  not  for  an  objection  to  the  form  of  the  affidavit  thereunto 
annexed  by  W'hich  it  has  been  verified.  In  that  affidavit  the  defend- 
ant swears,  "  that  the  several  matters  and  facts  set  forth  and  stated 
in  the  within  and  aforegoing  answer  are  just  and  true  as  they  are 
therein  stated,  according  to  the  best  of  her  knowledge,  belief,  and 
recollection."  This  the  plaintiffs  allege  is  too  vague,  indefinite, 
and  general. 

Regularly  the  affidavit,  in  all  such  cases,  should  assert,  "  that 
the  facts  within  the  defendant's  own  knowledge  are  true,  and  that 
those  facts  not  within  his  own  knowdedcje  he  believes  to  be  true." 
But  here,  there  has  been,  as  far  back  as  has  fallen  within  my 
observation,  a  very  great  neglect  of  all  regularity  in  the  forms  of 
such  affidavits  ;  and  therefore,  I  should  not  feel  myself  authorized, 
at  once,  to  depart  from  even  so  improper  a  practice  as  to  require, 
in  such  affidavits,  more  than  a  substantial  sufficiency.  As  to  Avhich 
I  know  of  no  better  test  than,  that  they  must  be  so  absolute  and 
positive,  when  taken  in  connexion  with  the  body  of  the  answer, 
as  to  subject  the  party  to  a  prosecution  for  perjury,  if  the  matters 
stated  in  the  answer  should  be  false.  It  is  now  well  settled,  that 
if  a  man  swears  he  believes  that  to  be  true  which  he  knows  to  be 
false,  he  swears  as  absolutely,  and  is  as  criminal,  and  may  be  pro- 
secuted and  punished  for  perjury  in  like  manner,  as  if  he  had  made 
a  positive  assertion. (c)  The  affidavit  to  this  answer  is  not  as  cor- 
rectly expressed  as  it  ought  to  have  been  ;  but  when  taken  m  con- 


(rt)   Beams'  1^1.  Eq.  26.— (6)    Carnant-.  Vansant,  adoi'r.  MS.  1S07.— (c)    2  Cliitt. 
Crim.  Law,  305 ;  1  Hawk.  P.  C.  c.  69,  s.  7 ;  Miller's  case,  3  Wilson,  427. 

18 


138  GIBSON'S  CASE. 

nexion  with  the  whole  answer,  I  deem  it  substantially  sufficient ; 
because  if  any  of  the  allegations  of  the  answer  are  false,  the 
defendant  will  be  as  clearly  liable  to  a  prosecution  for  perjury  as  if 
the  affidavit  had  been  couched  in  the  most  positive  terms. (d) 

Whereupon  it  is  ordered,  that  the  injunction  heretofore  granted 
in  this  case,  be  and  the  same  is  hereby  dissolved. 


GIBSON'S  CASE. 

The  Court  of  Chancery  has  the  power  in  all  cases,  where  it  may  be  necessary,  to 
appoint  and  employ  a  person  as  its  trustee  or  agent  to  make  sale  of  property  for 
the  purpose  of  executing  a  decree  or  order.  It  may  appoint  a  woman  or  any  com- 
petent person  on  the  recommendation  of  the  parties  interested ;  or  if  they  are 
silent,  the  plaintiff's  solicitor  is  usually  appointed.  But  the  court  will  not  appoint 
any  one  of  its  own  officers,  or  any  other  officer  to  be  trustee,  the  discharge  of 
whose  official  duties  may  be  incompatible  with  a  proper  attention  to  his  duties  aa 
trustee ;  nor  will  the  court  employ,  as  its  trustee,  an  infant,  feme  covert,  or  non 
resident.  For  negligence  or  improper  conduct  a  trustee  may  be  removed.  In 
general,  the  trustee  is  to  be  regulated  by  the  directions  of  the  order  or  decree ;  but 
in  making  a  sale,  he  may  deviate  from  the  mode  prescribed  by  the  decree,  after 
the  property  has  been  put  into  the  market,  by  advertising  it  for  sale  as  directed. 
Commissions,  or  poundage  fees  to  trustees,  are  allowed  by  law  and  regulated  by 
rule  of  court.  The  commission  is  given  as  a  compensation  for  the  performance 
of  all  the  duties  specified  in  the  decree,  and  the  subsequent  orders  in  relation  to 
the  sale,  and  its  proceeds.  The  trustee  may  employ  an  auctioneer.  The  allow- 
ance of  commissions  to  a  trustee  may  be  refused,  diminished,  or  enlarged,  accord- 
ing to  the  nature  and  circumstances  of  the  case. 

This  matter  arose  on  a  bill  filed,  on  the  7th  of  November,  1821, 
by  the  Farmers  Bank  of  Maryland,  against  John  J.  Gibson  and 
others,  the  representatives  and  trustees  of  the  late  Johii  Gibson^  for 
the  sale  of  a  real  estate,  which  he  had  mortgaged  to  the  bank  to 
secure  the  payment  of  $5325  20,  with  interest ;  upon  which  a 
decree  was  passed,  on  the  12th  of  February,  1822,  appointing 
Addison  Ridout  to  make  the  sale  ;  who  reported,  that  he  had  made 
a  sale  of  it,  for  one-third  cash,  and  the  residue  in  three  annual 
payments,  which  sale  was,  on  the  3d  of  November,  1825,  finally 
ratified,  allowing  the  trustee  for  commission  and  all  expenses, 
$309  50.  The  auditor  thereupon  stated  an  account,  distributing 
the  proceeds  of  sale,  in  which  the  amount  allowed  to  the  trustee 
was  appropriated  to  him,  which  account  as  reported  by  the  auditor 
was  ratified  on  the  fifth  day  of  the  same  month.     Some  time  after 

(d)  2  Chitt.  Crim.  Law,  392;  Beams' PI.  Eq.  27  ;  Drewr.  Drew,2  Ves.  &B.  159. 


GIBSON'S  CASE.  I39 

which  the  trastee,  Ridout,  died,  before  he  had  collected  the  whole 
amount  of  the  purchase  money ;  and,  on  the  14th  of  December, 
1826,  Louis  Gassaway  was  appointed  as  his  successor  to  complete 
the  trust ;  and  he  now  asks  for  an  allowance  of  commissions  on 
the  sum  of  $4779  70,  the  balance  of  the  purchase  money  collected 
by  him. 

15th  February,  1827. — Bland,  Chancellor. — It  has  been  the 
practice  of  this  court,  for  a  long  time,  in  a  great  variety  of 
cases ;  but,  particularly  in  creditors'  suits,  to  have  its  decrees  and 
orders  carried  into  effect  by  a  kind  of  occasional  executive  agents, 
called  trustees ;  who  perform  offices,  in  many  respects,  entirely 
analogous  to  those  of  the  regular  executive  officers  of  the  courts 
of  common  law ;  and  similar  to  those  which,  in  the  English  Court 
of  Chancery,  are  performed  by  the  regularly  constituted  officers  of 
that  court,  called  masters  in  chancery.  The  trustees  of  this  court 
hold  a  place  under  it,  and  discharge  their  duties  in  a  manner 
entirely  unknown  to  the  English  chancery  system.  The  princi- 
ples by  which  they  have  been  governed  have  grown  out  of  the 
nature  of  the  cases  in  which  they  have  been  employed ;  and, 
although  often  modified,  as  propriety  and  convenience  seemed  to 
suggest,  they  cannot  yet  be  regarded  as  being  as  well  settled,  and 
as  generally  understood  as  the  nature  of  the  subject  requires. 

Trustees  appointed  and  employed  by  this  court  have  always 
been  considered  as  its  ministerial  officers  ;  and,  in  whatever  way 
they  may  have  originated,  the  power  to  employ  such  agents  hav- 
ing been  recognised  and  affirmed  by  several  legislative  enactments, 
it  may  be  now  considered  as  finally  and  firmly  established,  (a) 

(a)  1785,  ch.  72,  s.  7 ;  April  1787,  ch.  30,  s.  5. 

PuE  V.  Dorset. — This  bill  was  filed  on  the  9t]a  of  June  1784,  by  Michael  Pue, 
William  Goodwin  and  Milcah  his  wife,  and  Eleanor  Dorsey,  surviving  executors  of 
Caleb  Dorsey,  against  Edward  Dorsey,  son  of  Samuel.  The  bill  states,  that  the 
plaintiffs'  testator  being  seized  and  possessed  of  a  large  real  and  personal  estate  in 
iron  works  carried  on  in  copartnership  with  a  certain  Alexander  Lawson,  in  May 
1772,  purchased  the  share  held  by  Law'son,  for  which  he  agreed  to  pay  the  sum  of 
three  thousand  pounds  sterling ;  soon  after  which  the  testator  made  a  codicil  to  his 
will,  wherein,  among  other  things,  is  contained  the  following  devise  : 

"  I  give  to  my  two  sons,  Samuel  Dorsey,  and  Edward  Dorsey,  and  their  heirs  for 
ever,  to  be  equally  divided  between  them,  to  hold  as  tenants  in  common  all  and  sin- 
gular the  furnaces  and  iron  works,  tracts,  pieces  and  parcels  of  land,  negroes,  white 
servants,  horses,  cattle,  wagons,  carts,  and  stock,  of  what  nature  and  kind  soever, 
and  all  and  singula:-  the  parts,  shares,  and  proportions  of  the  furnace  and  iron  works, 
tracts,  pieces  and  parcels  of  land,  negroes,  white  servants,  hoises,  cattle,  wagons, 
carts,  and  stock  of  what  Icind  or  nature  soever,  wliich  I  have  lately  purchased  from, 
or  cojitractcd  to  purchase  from,  and  of  a  certain  Alexander  Lawson,  of  Baltimore 


140  GIBSON'S  CASE. 

There  are  many  civil  offices  which,  according  to  the  common 
law,  a  woman  is  incompetent  to  fill,  such  as  those  of  judges,  jus- 
county,  gentleman.  And  I  do  further  direct,  that  such  part  of  the  consideration 
money  as  shall  be  due  and  owing  to  the  said  Alexander  Lawson,  for  the  aforesaid 
premises  at  the  time  of  my  decease,  shall  be  paid  equally,  share  and  share  alike,  by 
my  said  two  sons,  their  heirs,  executors,  or  administrators." 

The  bill  furtlier  states,  that  alter  the  death  of  the  testator  these  devisees  took  pos- 
session of  the  estate  so  devised  to  them  ;  but  having  failed  to  pay  the  purchase 
money,  Lawson  brought  suit  against  the  plaintiffs,  as  executors,  and  obtained  judg- 
ment against  them,  and  had  issued  execution  thereon ;  that  Samuel  Doi-sey,  one  of  the 
devisees,  died  some  time  in  the  year  1777,  intestate,  greatly  involved  in  debt,  without 
having  paid  any  part  of  the  debt  due  to  Lawson,  and  leaving  the  defendant,  his  heir 
at  law,  then  a  minor,  about  two  years  of  age ;  that  letters  of  administration  on  the 
estate  of  Samuel  had  been  granted  to  his  widow,  who  had  paid  debts  due  by  him,  to 
an  amount  greater  than  his  whole  personal  estate  ;  that  the  portion  of  the  debt  due 
to  Lawson  for  w^hich  the  devisee,  Edward  Dorsey,  was  liable,  had  been  in  part  paid, 
and  that  there  remained  due  of  that  debt  from  the  estate  of  the  intestate  Samuel,  the 
sum  of  one  thousand  five  hundred  pounds  sterling  money  with  interest ;  for  the  pay- 
ment of  which  his  real  estate,  which  had  descended  to  the  defendant,  was  liable. 
Whereupon  it  was  prayed,  that  so  much  of  the  real  estate,  which  had  descended, 
might  be  sold  as  would  be  sufficient  to  satisfy  the  debt  then  due  from  the  estate  of  the 
intestate  Samuel. 

The  exhibits  filed  with  this  bill  were,  the  codicil  to  the  will  of  the  testator,  Caleb 
Dorsey  ;  a  short  copy  of  the  judgment  obtained  by  Lawson  against  these  plaintiffs  ; 
and  a  certificate  from  the  register  of  wills,  that  the  personal  estate  of  the  intestate, 
Samuel  Dorsey,  had  been  overjiaid  to  the  amount  of  £24S  14s.  Id.  The  defendant 
having  been  returned  summoned,  and  appearing  to  be  an  infant,  Edward  Dorsey,  son 
of  Caleb,  was  appointed  his  guardian  to  appear,  answer,  and  defend  this  suit  on  his 
behalf;  who  accepted  of  the  guardianship  ;*  and  put  in  an  answer  in  his  name  in 
which  he  admits  the  truth  of  the  allegations  of  the  bill,  and  states,  that  it  would  be 
greatly  for  his  benefit  to  have  a  part  of  his  estate  sold  for  the  payment  of  the  debt 
for  which  it  was  so  liable,  {Pou'.  MoH.  916,  1  Eq.  Ca.  Mr.  287.)  In  additon  to  this 
answer  the  guardian  for  himself  says,  "  I,  Edward  Dorsey,  son  of  Caleb,  guai'dian 
for  Edward  Dorsey,  son  of  Samuel,  the  defendant  in  this  case,  do  hereby  consent, 
that  the  lands  mentioned  in  the  aforesaid  answer  or  such  part  thereof  should  be  sold 
under  the  decree  of  the  Court  of  Chancer)',  as  maybe  necessary  and  sufficient  to  pay 
the  debts  due,  which  is  contained  in  the  answer  aforesaid,"  (1773,  eh.  7,  s.  2.)  Upon 
aU  which  the  case  was  submitted. 

Ath  November,  17S4. — Rogers,  Chancellor. — ^Decreed,  with  the  assent  of  the  said 
Edward  Dorsey,  son  of  Caleb,  as  gnardian  of  the  said  Edward  Dorsey,  son  of  Samuel, 
that  he  the  said  Edward  Dorsey,  son  of  Samuel,  by  his  guardian  aforesaid,  do  set  up 
and  expose  to  sale  at  public  vendue,  the  several  parcels  of  land  in  the  proceedings 
mentioned,  or  such  part  thereof  as  may  be  sufficient  to  satisfy  the  complainants,  &c. 
after  giving  six  weeks'  notice  thereof  in  the  Annapolis  and  Baltimore  newspapers,  of 
the  time  and  place  of  such  sale,  and  the  same  when  sold,  Uc.  the  said  Edward  Dor- 
sey, son  of  Samuel,  do  and  shall  efiectually  convey  and  assure  to  the  purchaser  or 
purchasers  thereof,  their  heirs  and  assigns,  in  fee,  upon  payment  of  the  purchase 
money  to  the  said  Edward  Dorsey,  son  of  Caleb,  as  guardian  aforesaid ;  that  the 
guardian  aforesaid  shall,  &c.  satisfy  the  complainants,  &c. ;  that  tlie  guardian  afore- 

*  In  most  of  the  proceedings  about  this  time,  it  is  stated  that  the  person  appointed 
"accepted  of  the  guaidiar.ship." 


GIBSON'S  CASE.  141 

tices,  &c.  ;(6)  but  from  the  general  language  of  our  constitution, 
for  there  is  no  express  provision  upon  the  subject,  it  appears, 
that  women  are  virtually  excluded  from  all  the  various  offices  of'  our 
government, — legislative,  judicial,  and  executive.  From  which  it 
would  seem  to  follow,  that  females  could  not  constitutionally  be 
employed  even  as  the  mere  ministerial  agents  of  any  one  of  the  three 
departments ;  or  be  commissioned  to  perform  any  executive  duty 
required  by  any  one  of  the  courts  of  justice.  In  cases  of  lunacy,  if 
the  lunatic  be  a  female,  it  is  generally  deemed  most  proper  to 
appoint  a  female  committee  to  take  charge  of  her  person.  And 
so  in  other  cases  of  that  class,  it  has  been  sometimes  held,  that 
the  comfort  of  the  unfortunate  person  would  be  best  promoted  by 
having  his  person  placed  under  the  care  of  a  female  committee,  as 
by  appointing  the  wife  to  be  the  committee  of  her  husband,  &c.(c) 
The  Chancellor  of  Maryland  has  always  been  regulated  by  similar 
principles  and  feelings  ;  and  therefore  with  a  view  to  the  peace  and 
comfort  of  the  lunatic,  his  daughter  has  been  appointed  trustee  of 
his  person  with  others  who  were  constituted  trustees  of  his  estate,  (c?) 
In  a  creditors'  suit,  where  the  estate  of  the  deceased  was  likely  to 
be  exhausted  by  the  payment  of  his  debts,  the  widow,  on  asking 
to  be  appointed  trustee,  with  a  view  to  save  the  commissions  for 


said  do  and  shall,  a3  soon  as  the  several  parcels  of  land,  &c.  are  sold,  make  and  lodge 
in  this  court,  under  his  hand  and  with  his  affidavit  of  the  truth  thereof  thereto 
annexed,  a  just  and  accurate  certificate  or  memorandum  of  the  said  sales,  to  whom 
made,  and  at  what  price ;  and  also  as  soon  as  may  be,  after  the  receipt  of  the  pur- 
chase money  thereof,  render  to  this  court  a  lull,  just  and  true  account,  with  his  affi- 
davit annexed,  of  his  disbursements  thereof,  to  whom  made,  and  at  what  time;  that 
the  guardian  aforesaid  do  and  shall,  before  any  sale,  &.c.  execute  -and  file  in  this  court 
his  bond  to  the  State  of  Maiyland,  with  good  and  sufficient  surety,  faithfully  to  fulfil 
and  perform  the  trust  in  him  reposed  by  the  said  decree,  &.c.  and  that  the  said  guar- 
dian do  and  shall,  before  the  payment  of  the  said  sum  of  money  to  the  complainants, 
obtain  from  them  a  bond  to  the  State  of  Maryland  with  good  surety,  &c.  to  indem- 
nify, save  harmless,  and  exonerate  the  said  Edward  Dorsey,  son  of  Samuel,  his  heirs, 
&c.  from  all  charges,  &c.  on  account  of  the  judgments  aforesaid  obtained  by  the  said 
Alexander  Lawson,  and  from  all  claims  for  which  he  may  be  made  chargeable  by 
the  said  codicil  to  the  last  will  of  his  grandfather,  or  by  any  other  means  whatsoever. 

It  appears  that  the  tnistce  gave  bond,  and  returned  an  account  of  his  disbursements 
of  the  proceeds  of  sale,  with  which  the  record  closes. —  Chan.  Pro.  No.  2,  page  136. 

Bond  v.  Bond. — On  a  bill  filed  on  the  1st  of  October,  1783,  a  decree  was  passed 
2d  January,  1786,  for  a  sale  of  real  estate,  which  sale  was  directed  to  be  made  by  a 
trustee  in  a  manner  precisely  similar  to  that  directed  by  the  decree  in  the  aforegoing 
case. —  Chan.  Pro.  No.  2,  page,  612. 

(b)  The  King  v.  Stubbs,  2  T.  R.  .39.5;  Land  H.  Ass.  104,  note.— (c)  Ex  parte  Le 
Heup,  18  Ves.  226;  E.v parte  Ludlow,  2  P.  Will.  635.— (rZ)  H.  Clagget's  case,  MS. 
7th  December,  1S26. 


142  GIBSON'S  CASE. 

the  support  of  herself  and  child,  was,  no  objection  being  made, 
appointed  trustee  accordingly. (e)  And  so  in  other  cases  where  the 
appointment  of  a  female  appeared  to  be  well  calculated  to  promote 
the  interests  of  all  concerned,  she  has  been  employed  as  trustee  to 
carry  the  decree  into  effect. (/)  Hence  it  would  seem,  that  although 
it  does  not  often  happen,  that  females  are  appointed  as  the  execu- 
tive trustees  of  this  court,  yet  they  cannot  be  regarded  as  incompe- 
tent to  act  as  such  in  any  case  whatever. 

(e)  Dowig  V.  Marvel,  MS.,  16th  October,  1789. 

(/)  Ex  PARTE  Margaret  Black. — The  petition  filed  23d  Febraary,  1804,  sets 
forth,  that  the  late  George  Black,  by  his  last  will,  declared  in  these  words  :  "  I  also 
direct  and  devise  the  farm  that  I  bought  of  William  Keating,  together  with  what  land 
I  bought  of  Simon  Weeks,  lying  on  the  south  side  of  the  road  leading  from  Black's 
Cross  Roads  to  the  brick  meetinghouse,  to  be  sold,  and  the  money  arising  therefrom 
to  be  applied  to  the  payment  of  my  debts  ;  residue  and  remainder  of  my  estate,  both 
real  and  personal,  I  give  and  bequeath  unto  my  son  James  Black,  who  I  do  hereby 
nominate  and  appoint  executor  of  this  my  last  will  and  testament,  and  I  do  also 
appoint  him  guardian  to  all  my  children  which  may  not  be  of  age  at  my  decease ;" — 
that  James  Black  qualified  as  executor  and  overpaid  the  personal  estate  £1122  15s.  2rf.; 
that  undsr  an  impression  that  he  was,  as  executor,  authorized  to  sell  the  land,  so 
directed  to  be  sold,  he  had  accordingly  sold  it  to  James  Welch ;  and  had  received  a 
part  of  the  purchase  money.  After  which,  James  Black,  by  his  last  will  had  appointed 
the  petitioner  his  executor,  and  died;  that  there  was  still  a  considerable  balance  due 
to  James  Black.  Prayer,  that  the  Chancellor  would  ratify  what  had  been  done,  on 
the  ground,  that  he  might  sanction  that  when  done  which  he  might  have  directed  to 
be  done  ;  or  that  he  would  authorize  a  private  sale  to  enable  James  Welch  to  become 
the  purchaser  so  as  to  affirm  and  reassure  his  title,  and  to  have  the  purchase  money 
applied  in  discharge  of  the  claim  of  the  late  James  Black,  &.c.  Upon  which  the  fol- 
lowing decree  was  passed. 

4th  February,  1804. — Hanson,  ChanceUor. — The  said  petition  with  the  last  will 
and  testament  of  George  Black  were,  by  the  Chancellor,  read  and  considered ;  and 
provided  the  facts  stated  in  the  said  petition  be  true  ; — decreed,  that  the  real  estate  of 
George  Black  in  the  petition  and  will  mentioned,  as  devised  to  be  sold,  be  sold 
according  to  the  directions  and  provisions  of  the  said  will ;  and  that  Margaret  Black, 
&c.  be  trustee,  &c.  &c. ;  she  shall  proceed  to  sell  either  at  public  or  private  sale,  and 
on  such  terms  and  conditions  as  she  may  deem  most  advantageous  to  the  estate,  &c.  &c. 
"Provided,  and  it  is  the  true  intent  and  meaning  of  tliis  decree,  that  if  it  shall  appear 
to  the  trustee,  that  the  sale  made  by  her  deceased  husband,  James  Black,  to  James 
Welch,  was  a  fair  and  beneficial  sale  for  the  estate,  that  the  trustee  shall  then  confirm 
and  agree  to  the  same,  and  make  report  to  the  Chancellor ;  and  on  the  Chancellor's 
ratification  and  confirmation,  and  on  the  payment  of  the  purchase  money,  the  trustee 
shall  by  a  good  and  sufiicient  deed  convey  to  the  said  James  Welch  and  his  heirs,  the 
land  he  purchased,  which  deed  shall  have  the  same  effect  as  herein  before  mentioned." 
{Ex  parte  Mary  J.  Bayard,  by  her  next  friend,  order  22d  March,  1802;  and  1818,  ch. 
193,  s.  9.)  

The  trustee,  Margaret  Black,  reported  her  approbation  of  the  sale  made  to  Welch, 
which  on  the  2Sth  November,  1805,  by  an  order,  was  to  be  ratified  riisi,  &c.,  publi- 
cation to  be  made  in  the  Easton  newspaper,  "or  set  up  and  continued  three  weeks 
at  the  door  of  the  courtlionse  of  Kent  county  before  the  end  of  December  next ;" 
which  order  was  afterwards  made  absolute. 


GIBSON'S  CASE.  I43 

But  where  it  appears  that  the  duties  of  trustee  are  altogether,  or 
in  most  respects  incompatible  with  the  duties  of  the  office  which 
the  proposed  person  holds,  such  as  that  of  the  register  of  this 
court,  a  clerk,  or  a  judge  of  a  county  court,  &c.,  such  person  can- 
not be  employed  as  a  trustee  by  this  court. (g-)  In  general,  where 
the  sale  or  disposition  of  any  property  is  to  be  confided  to  a  trus- 
tee, he  must  be  required  to  give  security  for  the  faithful  performance 
of  his  trust ;  and,  consequently,  as  no  one  can  be  so  appointed 
who  is  incompetent  to  contract,  an  infant  or  z.  feim  covert  can- 
not be  a  trustee  in  any  such  case.  It  is  necessary,  in  all  cases,  that 
the  trustee  of  the  court  should  be  a  citizen,  resident  within  its 
jurisdiction ;  not  only,  that  he  may  be  the  better  able  to  discharge 
his  duties ;  but,  that  he  may  be  continually  within  its  reach  and 
control ;  therefore,  no  one  who  is  not  a  resident,  or  w^ho  is  engaged 
in  any  pursuit,  or  who  holds  any  office  which  may  require,  or 
subject  him  to  go,  or  be  ordered  out  of  the  State  during  any  long 
intervals  of  time, — such  as  masters  of  merchant  vessels,  or  officers 
in  the  army  or  na\'y, — can  be  appointed  trustees.  And  as  a  trustee 
can  only  be  appointed  during  the  pleasure  of  the  court,  if  he 
remove  out  of  the  State,  neglect  his  duty,  or  is  guilty  of  any 
injurious  or  improper  conduct,  he  may,  on  application  of  any  one 
concerned,  be  displaced,  and  another  trustee  appointed  in  his 
stead.  (A) 

In  making  the  selection  of  a  person  to  be  employed  as  a  trustee, 
the  court  exercises  a  sound  discretion  upon  a  view  of  the  whole 
case ;  and  as  the  Chancellor  may  allow  himself  to  be  actuated  by 
feelings  of  benevolence  upon  such  occasions,  where  he  can  do  so 
without  injustice  to  any  one,  he  has  therefore,  as  before  observed, 
appointed  the  widow  as  trustee,  that  she  might  obtain  the  commis- 
sions for  the  benefit  of  herself  and  child.  The  recommendations 
of  the  parties  are  always  attended  to,  and  allowed  to  have  their  due 
weight  as  to  numbers,  amount  of  interest,  and  reasons  assigned ; 
where  the  parties  are  silent,  it  has  been  usual  to  appoint  the  solici- 
tor of  the  plaintiff  as  trustee ;  but  a  plurality  of  trustees  is  never 
appointed  except  on  special  application  by  petition,  motion,  or 
suggestion,  (i) 

(g)  Bac.  Abr.  tit.  Offices  &  Officers,  (K).— (A)  Ex  parte  Ord,  Jac.  Rep.  94; 
Logan  V.  Fairlee,  Jac.  Rep.  193  ;  Berry's  case,  MS.  14th  May,  180.3  ;  Chew  v.  Birk- 
head,  MS.  .30th  June,  1798 ;  Kilty  v.  Quynn,  MS.  i)tli  Janiiar)',  1813,  and  1st  August 
1815.— (z)  Edwards  v.  Buchanan,  MS.  27th  May,  ISOO ;  Kilty  v.  Quynn,  MS.  5th 
Febraaiy,  1805. 


144  GIBSON'S  CASE. 

The  kind  of  duties  required  of  a  trustee,  and  the  manner  in 
which  they  are  to  be  performed,  are  most  usually  particularly  pre- 
scribed by  law,  or  specified  in  the  decree  or  order  to  be  exe- 
cuted. But  here  a  trustee  is  indulged  with  a  greater  latitude  of 
discretion  in  making  sales  of  property  than  is  allowed  to  a  master 
in  chancery  in  England.(j)  In  all  cases  where  the  trustee  is 
directed  to  put  the  property  into  the  market,  by  advertising  and 
offering  it  for  sale,  he  must  do  so  ;  but,  after  that  has  been  done, 
if  it  cannot  be  sold,  at  public  auction,  upon  the  terms  specified, 
he  may  accept  of  a  bid  upon  different  terms,  or  he  may  dispose 
of  it  at  private  sale,  or  upon  other  terms  than  those  mentioned  in 
the  decree ;  because  as  he  is,  in  all  cases,  required  to  make  a 
report  in  writing  of  only  such  a  sale  as  he  can,  on  oath,  state  to 
have  been,  in  all  respects,  fairly  made,  which  cannot  be  ratified, 
without  consent,  until  public  notice  has  been  given  to  shew  cause, 
if  any  there  be,  why  it  should  not  be  confirmed ;  there  can  be  no 
danger  or  inconvenience  in  allowing  him  to  deviate  from  the  pre- 
scribed manner  and  terms  of  sale,  after  the  property  has,  by 
advertisement  and  an  actual  public  offer  to  sell  at  the  time  and 
place  appointed,  been  completely  put  into  the  market.  A  trustee 
cannot,  however,  be  allowed,  of  himself,  to  do  any  act  which, 
in  similar  cases,  is  usually  required  to  be  done  by  such  an  agent ; 
but  which  has  not  been  particularly  specified  in  the  order  or  decree, 
under  which  he  holds  his  appointment ;  as  where,  in  a  creditor's 
suit,  the  court  had  omitted,  in  its  decree,  to  direct  the  trustee  to 
give  notice  to  creditors  to  file  the  vouchers  of  their  claims  by  a 
specified  day,  the  trustee  was  not  permitted,  of  himself,  to  give 
any  such  notice.  (A:) 

According  to  the  common  law,  no  public  officer  was  permitted  to 
take  any  fees  for  the  performance  of  his  duty,  except  such  as  were 
expressly  allowed  by  law,  as  a  compensation  for  his  trouble.  Yet 
it  appears,  that  judicial,  as  well  as  ministerial  officers  w^ere  allowed 
to  make  title  to  certain  fees  and  perquisites  by  usage,  and  custom ; 
and  although  it  would  seem,  that  no  petty  pecuniary  charge  should 
be  permitted  to  intercept  an  extension  of  mercy,  intended  to  save 
the  life  of  a  fellow  creature,  yet  it  is  said,  that  in  England,  if  a 
person  pleads  his  pardon,  the  judges  may  insist  on  the  usual  fee  of 
gloves  to  themselves  and  officers  before  they  allow  it.(/)     Before 

0)  Annesley  v.  Ashhurst,  3  P.  Will.  2S2.— (fc)  Isaac  Williams'  Estate,  MS.,  3d 
December,  1823.— (0  Co.  LiU.  363 ;  2  Inst.  209 ;  3  Jac.  L.  Diet.  2-1. 


GIBSON'S  CASE.  145 

the  revolution,  the  judicial  and  ministerial  officers  of  the  govern- 
ment, here  as  vv^ell  as  in  England,  were  allowed  to  take  fees  ;{m) 
but  the  Constitution  has  declared,  that  no  chancellor  or  judge  shall 
receive  fees  or  perquisites  of  any  kind.(72.) 

The  fees  of  all  regularly  constituted  ministerial  officers  have 
been  regulated  by  law  ;(o)  and  it  is  declared,  "  that  the  Chancellor 
shall  have  full  power  and  authority  to  allow  any  guardians,  trus- 
tees, agents,  or  factors,  who  shall  make  disposition  or  sale  of 
either  real,  personal,  or  mixed  property,  for  the  purpose  of  paying 
the  debts  of  deceased  persons  or  others,  under  and  in  virtue  of 
any  order  or  decree  of  the  Chancery  Court,  a  commission  from 
one  per  cent,  to  seven  and  a  half  per  cent,  for  their  trouble  in  sell- 
ing and  disposing  thereof,  and  paying  the  same  away  in  pursuance 
of  such  order  or  decree  as  the  Chancellor  shall,  on  consideration 
of  all  circumstances,  think  just  and  right."(p)  By  a  rule  of  this 
court  of  the  14th  of  June,  1797,  it  was  declared,  that  "  the  standing 
order  of  this  court  relative  to  the  commission  of  trustees  for  the 
sale  of  real  estates  having  been  lost  or  mislaid,  ordered,  that  in 
future  the  following  allowances  shall  be  made  : — On  the  first  hun- 
dred pounds  seven  per  cent..,  on  the  second  hundred  pounds  six 
per  cent.j'^  and  so  on,  as  in  the  existing  rule,  to  the  tenth  hun- 
dred pounds,  and  then  it  is  further  declared,  that  "  all  above 
j£1000  at  the  rate  of  two  per  cent.  This  allow^ance  is  to  be  clear 
of  all  necessary,  except  personal  expenses ;  and  is  intended  for 
cases  where  the  sale  is  for  ready  money  or  to  satisfy  one  debt 
only.  Where  the  sale  is  on  credit,  or  to  satisfy  more  than  one 
creditor,  the  Chancellor  will  make  a  further  allowance  from  a  half 
to  one  and  a  half  per  cent.,  on  the  whole  amount  of  sales,  accord- 
ing to  the  circumstances  of  the  case." 

From  which  it  may  be  inferred,  that  the  lost  standing  order,  of 
which  this  is  a  renewal,  had  been  made  in  conformity  to  the  act  of 
assembly,  and  soon  after  it  was  passed.  It  appears,  however,  that 
although  fees,  which  have  been  settled  by  the  ancient  course  of  the 
court,  cannot  be  altered,  but  by  an  act  of  the  legislature, (5)  yet 
this  standing  order,  for  regulating  the  commissions  of  trustees,  has 
been  frequently  departed  from  ;  for,  there  are  many  cases  in  which 
a  commission,  not  thus  graduated,  and  varying  from  two  and  a 


(m)  17C3,  ch.  18,  s.  37,  kc— (?i)  Dec.  Rig.  art.  30.— (0)  November  1779,  ch.  2-5; 
lS26,ch.  2-17.— (p)  April  17S7,  ch.  30,  s.  5;  1S16,  ch.  154,  s.  2  k  4.— (<?)  Ex  pwle 
Jephson,  Prec.  Chan.  551. 

19 


146  GIBSON'S  CASE. 

half  to  seven  and  a  half  per  cent,  on  the  whole  amount  has  been 
allowed,  (r) 

But  this  act  of  assembly  authorizing  the  allowance  of  a  commis- 
sion, as  well  as  this  rule  by  which  that  commission  was  graduated 
into  the  form  of  poundage  fees,  allowed  to  a  sheriff  for  the  sale 
of  property  taken  in  execution,  it  is  evident,  were  both  confined  to 
sales  made  "for  the  purpose  of  paying  the  debts  of  deceased 
persons,  or  others ;"  and  consequently,  although  they  applied  as 
well  to  sales  of  mortgaged  property  as  to  sales  in  creditors'  suits, 
and  the  like ;  yet  they  did  not  extend  to  any  case  of  a  sale  made 
of  real,  or  personal  property,  because  of  its  indivisible  nature,  for 
the  purpose  of  dividing  the  proceeds  among  those  by  whom  it  was 
held  jointly  or  in  common ;  nor  do  they  apply  to  the  case  of  a  sale 
made,  pending  a  suit,  of  the  property  in  litigation,  because  of  its 
perishable  nature,  for  the  purpose  of  preserving  its  value  to  him  to 
whom  it  may  be  determined  to  belong,  by  the  final  decree.  Yet  in 
these,  as  well  as  in  all  other  cases,  whether  embraced  by  the  act 
of  assembly  or  not,  the  trustee  has  been  allowed  a  commission,  or 
compensated  for  his  trouble  in  one  form  or  other.  But  by  the  exist- 
ing standing  order  passed  at  March  term,  1817,  it  is  declared,  that 
"  on  sales  under  decrees  or  orders  of  the  court,  the  following 
allowances  to  be  made  to  trustees,  &c.  On  the  first  three  hundred 
dollars,  seven  ^er  cent.;  on  the  second,  siK-per  cent.;  on  the  third, 
five ;  on  the  fourth,  four ;  on  the  fifth,  three  and  a  half;  on  the 
sixth,  three  and  a  half;  on  the  seventh  and  eighth,  three ;  and 
on  the  ninth  and  tenth  hundred  dollars,  two  and  a  half  per  cent. 
And  three  per  cent,  on  aU  above  three  thousand  dollars ;  besides 
an  allowance  for  expenses  not  personal.  The  above  allowance 
subject  to  be  increased  in  cases  of  postponement,  at  the  request 
of  the  defendants,  or  of  extraordinary  diflficulty  or  trouble  from 
other  circumstances ;  and  to  be  lessened  in  case  of  negligence, 
&c.  at  the  discretion  of  the  Chancellor."  This  rule  is  expressed 
in  the  most  comprehensive  terms,  and  embraces  all  sales  made 
by  a  trustee,  under  the  authority  of  the  court,  for  any  purpose 
whatever. 

The  commission  allowed  to  a  trustee  is  given  to  him  as  a  com- 
pensation for  his  trouble  and  risk  in  making  the  sale,  bringing  the 

(r)  Dulany  v.  Brice,  MS.,  27th  December,  1794;  Dovvig  r.  Marvel,  MS.,  16th 
October,  17S9 ;  Anderson  v.  Anderson,  MS.,  17th  April,  1789 ;  Dorsey  v.  Cooke, 
MS.,  16th  October,  1789;  Taylor  v.  Casanave,  MS.,  11th  March,  1S19;  Mildred  v. 
NeU,  MS.,  26th  February,  1788. 


GIBSON'S  CASE.  I47 

money  into  court,  and  paying  it  away  in  the  manner  directed ;  or, 
in  other  words,  for  the  performance  of  all  the  duties  specified  in 
the  decree,  and  the  subsequent  orders  in  relation  to  the  sale  and  its 
proceeds.  It  is  sufficiently  evident,  from  the  language  of  the  rules, 
graduating  the  rate  of  the  commission  into  the  form  of  poundage 
fees,  that  the  commission  allowed  to  a  trustee  has  never  been  con- 
sidered, in  any  respect,  as  a  commission  in  the  mercantile  sense 
of  that  term.  A  trustee  of  this  court  is  a  person  of  legal  consti- 
tution, with  legal  duties ;  and  though  some  of  his  duties  may  have 
a  mercantile  mixture  in  them,  he  does  not  transact  them  as  a  mer- 
chant. He  acts  altogether  as  a  legal  officer,  and  must  be  paid,  as 
such,  in  proportion  to  his  diligence,  skill,  trouble  and  risk ;  not 
exactly  according  to  the  value  of  the  subject  in  litigation. (s)  And 
therefore  the  term  commission^  in  the  mercantile  sense,  cannot  be 
applied  to  the  compensation  of  a  trustee,  or  any  other  officer  of  this 
court.  But  it  has  been  found,  in  many  cases,  to  be  highly  expe- 
dient, if  not  absolutely  necessary,  to  have  the  property  sold  by  an 
auctioneer ;  and  it  is  obviously  for  the  benefit  of  those  concerned, 
that  all  sales  should  be  so  conducted,(ii)  although  no  fee  is  allowed 
to  a  sheriff  for  so  making  a  sale.(y)  Therefore  it  has  been  deemed 
proper  to  permit  the  trustee  to  employ  an  auctioneer,  to  whom  may 
be  allowed  a  fee,  not  exceeding  five  dollars,  for  each  separate  and 
unconnected  sale. 

Considering  the  nature  of  the  office  of  a  trustee,  it  follows, 
that  as  on  the  one  hand,  his  compensation  may,  because  of 
the  discharge  of  his  duties  being  attended  with  a  very  unusual 
degree  of  labour  and  risk,  be  increased ;  so,  on  the  other  hand, 
his  compensation,  because  of  his  duties  having  been  improperly 
or  but  partially  performed,  may  be  altogether  withheld,  or  pro- 
portionably  diminished.  As  where  it  appeared,  that  the  trustee 
had  been  under  the  necessity  of  making  several  journeys  or 
voyages,  or  had  already,  and  should  thereafter  incur  much  extra- 
ordinary trouble  for  the  purpose  of  executing  the  decree, 
he  was  allowed  a  compensation,  in  addition  to  the  commis- 
sion specified  by  the  rule.(i«)     On   the  other   hand,   where  the 

(s)  The  Rendsberg,  6  Rob.  Adm.  Rep.  164;  Wood  v.  Freeman,  2  Atk.  542.— (i^)  The 
Rend.sberg,  6  Rob.  Adm.  Rep.  168.— (y)  The  King  v.  Crackenthorp,  2  Anstr.  412. 

{w)  The  Rendsberg,  6  Rob.  Adm.  Rep.  163;  Hindman  v.  Clayton,  MS.,  8th 
March,  1805. 

Millar  v.  Baker. — This  was  a  creditors'  bill,  filed  on  the  12th  of  February, 
1796,  to  have  the  real  estate  of  the  late  Christian  Baker,  lying  in  Frederick  county, 
sold  to  pay  his  debts,  &c.     On  the  2d  of  June,  1796,  it  was  decreed,  in  the  usual 


148  GIBSON'S  CASE. 

trustee,   after  having  given  bond,  had   forborne,   at   the   request 
of  the  defendant,  to  make  the  sale,  he  was  allowed  half  commis- 


form,  that  the  property  in  the  proceedings  mentioned  be  sold ;  which  was  sold  accord- 
ingly.    After  which  the  following  remarks  and  orders  were  made  : 

3th  December,  1796. — Hanson,  Cliancellor. — It  is  stated,  that  Jacob  Scheisler  con- 
tracted for  the  sale  of  a  parcel  of  ground  in  Frederick  county,  to  Christian  Baker, 
for  £50  on  credit ;  that  the  contract  was,  that  a  deed  be  given  on  Baker's  executing 
a  bond  for  the  money  ;  that  Baker  took  possession  and  died  without  having  executed 
a  bond,  or  taken  a  conveyance ;  but  that,  before  his  death  Baker  paid  one  year's 
interest  on  the  said  jC  50,  to  Scheisler ;  that  after  Baker's  death  his  creditors  obtained 
a  decree  for  selling  his  real  estate ;  that  under  the  decree,  the  said  lot,  which  had 
been  improved  by  Baker,  was  sold  with  other  property,  in  which  Baker  had  a  legal 
estate  in  fee  ;  that,  since  Baker's  death,  Scheisler  has  neither  received  the  considera- 
tion money,  nor  conveyed ;  but  that  he  declares  his  willingness  to  convey,  on  receiv- 
ing the  money,  although  he  will  not  file  his  claim  in  the  Chancery  Court. 

On  this  statement,  it  appears  unreasonable,  that  Scheisler  will  not  exhibit  his  claim 
to  the  Chancellor ;  and  that  such  exhibition  would  be  convenient  to  all  parties,  by 
saving  the  trouble  and  expense  of  a  chancery  suit,  in  which  Scheisler  might  probably 
be  compelled  to  convey  on  receiving  his  money.  The  Chancellor  cannot  direct 
money  to  be  paid  to  Scheisler,  unless  he  exhibits  his  claim,  or  is  called  to  answer  a 
bill  or  petition  for  conveyance.  Upon  the  whole,  the  Chancellor  thinks  proper  to 
declare,  that,  provided  the  above  statement  of  facts  be  full  and  correct  in  every  par- 
ticular, it  will  be  advisable  for  Scheisler  to  exhibit  his  claim  to  avoid  inconvenience 
to  himself  and  the  parties  interested  in  the  trustee's  sale. 


Sometime  after  which  tlie  case  was  again  brought  before  the  court. 

2d  September,  1797. — Hanson,  Chancellor. — Ordered,  that  the  sale  made  by  Henry 
Kuhn,  trustee  of  tlie  real  estate  of  Christian  Baker  deceased,  as  stated  in  his  report 
here  filed,  be  absolutely  ratified  and  confirmed,  no  cause  to  the  contrary,  &.c.  although 
notice,  &c. 

Ordered  likewise,  that  of  the  money  arising  from  the  said  sale  there  be  applied 
the  sum  of  £14  13s.  Od.,  for  the  costs  of  this  suit  as  taxed  by  the  register;  that  out 
of  the  said  money  there  be  allowed  to  the  trustee,  for  his  whole  trouble  and  expense 
incurred,  or  to  be  incurred,  in  the  discharge  of  his  office,  the  sum  of  £  36 ;  that 
there  be  paid  to  the  following  creditors  of  the  said  deceased  the  sums  of  money 
set  opposite  to  their  names,  with  interest  thereon  from  August  20th,  1796,  to  the 
time  of  payment. 

Conrad  Doll £,V2\  \6s.  M 

(Then  follows  a  list  of  twenty-three  others.) 

Ordered,  that  the  said  trustee,  on  the  receipt  of  money  from  any  of  the  purchasers 
of  the  aforesaid  real  estate,  either  immediately  deposit  the  same  in  this,  court, 
agreeably  to  the  directions  of  the  decree ;  or  without  delay,  distribute  the  same 
amongst  the  creditors  aforesaid,  according  to  their  claims.  And  the  attested  written 
receipt  of  any  of  the  said  creditors  shall  be  admitted  in  this  court  instead  of  so  much 
money  directed  to  be  brought  in. 

Ordered,  that  the  sui-plus  of  the  money  arising  from  the  said  sale  remaining,  after 
discharging  the  several  sums  herein  before  directed  to  be  paid,  shall  be  subject  to  the 
future  Older  of  this  court.  

After  which,  the  vendor,  Jacob  Scheisler,  having  presented  his  claim  against  the 
estate  of  the  deceased,  the  case  was  again  brought  before  the  court. 


GIBSON'S  CASE.  149 

sions.(a:)  And  v.-liere  the  sale,  made  by  the  trustee,  had  been  set  aside 
without  any  blame  having  been  imputed  to  him,  and  afterwards 
another  trustee  had  been  employed  who  had  made  sale  of  the  same 
property,  the  first  trustee  was  allowed  half  commissions. (y)  And 
where  the  trustee,  after  having  made  sale  of  a  part  of  the  property, 
had  removed  beyond  the  jurisdiction  of  the  court,  he  w^as  allowed  a 
commission  of  one  and  a  half  per  cent.{z)  And  where  the  trus- 
tee, after  having  made  the  sale,  died  before  he  had  reported  it  to 
the  court,  two-thirds  of  the  commissions  were  awarded  to  his 
representatives,  and  one-third  to  his  successor,  by  whom  the  sale 
had  been  reported  and  completed. (a)  No  general  rule  has,  how- 
ever, been  laid  down  in  any  of  these  cases,  and  perhaps  none  can 
be  established  in  regard  to  this  matter ;  the  circumstances  of  each 
case  being  so  peculiar,  that  each,  as  it  occurs,  must  be  submitted 
to  the  sound  discretion  of  the  court  upon  its  own  particular  merits. 
In  some  cases  the  fund  may,  to  a  certain  extent,  be  burthened 
with  double  commissions,  as  in  this  instance ;  where  the  trustee 
dies  after  having  actually  received  an  amount  of  the  proceeds  of 


22d  August,  179S. — Hanson,  Chancellor. — Ordered,  that  of  the  money  to  arise 
from  the  sale  of  the  real  estate  of  the  said  Christian  Baker,  there  be  paid  to  the  fol- 
lowing persons,  whose  claims  have  been  exhibited  since  the  passage  of  the  order  for 
the  application  of  part  of  said  money,  the  sums  set  opposite  to  their  names,  with 
interest  from  the  respective  dates  to  the  said  sums  annexed  to  the  time  of  payment. 

Matthias  Buckey  -  -  -  £  3  Is.  Sd.  Oct.  7th,  1793. 

Jacob  Scheisler  -  -  -  50  Os.  Od.  May  1st,  1793. 

Jacob  Baltzell  -  -  -  75  Os.  Od.  Oct.  8th,  1797. 

It  appears  on  calculation,  that  the  money  to  arise  from  the  sale,  (provided  the  pur- 
chasers shall  all  fully  discharge  their  bonds,)  will  be  more  than  sufficient  to  discharo-e 
the  costs,  commission  already  allowed,  and  claims  against  the  said  Baker,  directed  by 
the  former  and  present  order,  to  be  paid.  In  consideration  of  the  extraordinary 
trouble  already,  and  to  be  incurred  by  the  trustee,  it  is  further  ordered,  that  he  be 
allowed,  in  addition  to  the  aforesaid  commission,  whatever  surplus  of  the  purchase 
money  may  remain,  after  fully  discharging  the  costs,  and  all  the  claims  against  the 
said  Baker,  with  interest,  directed  by  the  present  and  former  order,  to  be  paid ;  pro- 
vided he  shall  prepare  or  have  prepared,  at  his  ow-n  expense,  deeds  to  be  executed 
by  the  aforesaid  Scheisler  and  Baltzell,  conveying  unto  him  and  his  heirs  the  land,  by 
them  contracted  to  be  conveyed  to  the  aforesaid  Baker,  in  trust,  that  he  shall  convey 
the  same  to  the  purchaser,  or  purchasers  thereof  under  the  original  decree  in  this 
cause ;  or  provided  he  shall  procure  conveyances  from  the  said  Scheisler  and  Balt- 
zell to  the  said  purchaser  or  purchasers  after  his  receipt  of  the  whole  purchase 
money. 

N.  B.  It  may  be  proper  for  the  said  Scheisler  and  Baltzell  to  join  the  trustee  in  his 
conveyance  to  the  purchasers. 

(X)  Carroll  v.  Jones,  MS.,  14th  September,  1821.— (?/)  Lawson  v.  The  State, 
MS.,  .3d  July,  1810.— (s)  Berry's  Case,  MS.,  1-lth  May,  1803.— (a)  Selby  v.  Selby, 
MS.,  1st  May,  1819. 


150  McKIM  V.  THOMPSON. 

sale  equal  to  the  sum  allowed  to  him  as  commissions  upon  the 
whole,  by  a  previous  order  of  the  court.  In  such  case  the  court 
cannot  revoke  its  order,  merely  because  of  the  death  of  the  trus- 
tee ;  and,  therefore,  the  only  mode  in  which  this  double  charge 
could  be  jorevented  or  corrected,  would  be  to  alter  the  practice,  so 
as  to  postpone  the  payment  of  the  trustee's  commission  until  the 
whole  of  his  duties  had  been  performed,  or  to  authorize  summary 
proceedings  to  be  instituted,  to  make  his  representatives  refund  in 
part,  with  which  the  succeeding  trustee  may  be  compensated  for 
his  trouble  in  collecting  the  balance.  Under  such  circumstances,  it 
seems  to  be  fair,  by  way  of  analogy  to  the  rule  laid  down  by  the 
legislature  in  regard  to  sheriffs,  and  others, (6)  to  apportion  the 
commission  or  poundage,  where  it  can  be  done,  between  the  pre- 
ceding and  succeeding  trustee  according  to  the  sum  which  each 
may  have  collected,  or  on  a  consideration  of  the  trouble  and  merits 
of  each.  But  in  this  case  the  fund  has  been  already  charged  with 
fuU  commissions  ;  and  therefore  should  not  now  be  again  charged 
with  more  than  a  necessary  recompense  to  the  present  trustee  for 
his  trouble  ;  which  in  this,  as  in  all  similar  cases,  must  be  regulated 
according  to  the  services  actually  rendered. 

Whereupon,  it  is  ordered,  that  this  trustee  be  and  he  is  hereby 
allowed  half  commissions  on  the  amount  stated  to  have  been 
received  by  him. 


McKIM  V.  THOMPSON. 


To  obtain  an  order  upon  a  defendant  to  bring  money  into  court,  before  the  final  hear- 
ing, it  must  appear,  that  he  who  asks  for  such  an  order  has  an  interest  in  the  money- 
proposed  to  be  called  in  ;  and  that  he  who  has  it  in  his  hands  has  no  equitable  right 
lo  it ;  and  the  facts  from  which  this  appears  must  be  found  in  the  case  as  it  then 
stands,  either  admitted  or  so  established  as  to  be  open  to  no  further  controversy  at 
any  subsequent  stage  of  the  proceedings. 

A  defendant  cannot  be  allowed  to  put  in  a  supplemental  answer,  except  under  very 
special  circumstances. 

An  appeal  does  not  lie  from  a  mere  interlocutory  order,  by  which  nothing  is  finally 
settled  between  the  parties. 

The  case  referred,  and  a  decree  upon  the  award. 

It  appears,  that  Marcus  Heyland,  for  the  purpose  of  carrying  on 
the  business  of  a  merchant  in  the  city  of  Baltimore,  went  to  Eng- 

(6)  1795,  ch.  83,  s.  6;  1813,  ch.  102,  s.  5;  Bac.  Abr.  tit.  Sheriff  (I). 


McKIM  V.  THOMPSON.  15X 

land,  and  there,  in  the  year  1810,  purchased  of  sundry  persons 
goods  to  the  amount  of  about  $67,000 ;  and,  to  secure  the  pay- 
ment for  them,  drew  bills  in  favour  of  those  from  whom  he  pur- 
chased, on  William  ^  John  Bell  Sf  Co.  which  they  accepted ;  that 
some  time  after,  William  Bell  died,  and  John  Bell,  by  a  letter  of  the 
10th  November,  1810,  informed  Heyland,  that,  in  consequence  of 
the  death  of  his  partner  and  other  circumstances,  his  late  firm  had 
become  somewhat  deranged,  and  that  he  had  made  over  all  the 
amount  due  by  him  for  those  acceptances  to  Hugh  Thompson  of 
the  city  of  Baltimore,  which  he  was  requested  to  notice,  and  to 
account  with  Thompson  accordingly.  In  consequence  of  which, 
on  the  20th  of  November,  1810,  Heyland  entered  into  an  agree- 
ment, by  which  he  bound  himself  to  Thompson  to  the  amount  of 
what  he  should  owe  to  the  firm  of  William  §'  John  Bell  ^'  Co.,  on 
account  of  their  acceptances  on  his  behalf,  or  other^vise,  on  the 
fate  of  those  acceptances  being  known  in  this  countrj-.  But,  not 
being  entirely  satisfied  with  this  arrangement,  Heyland  and  Thomp- 
son, on  the  8th  of  January,  1811,  made  and  executed  the  following 
agreement : — 

"  Whereas  Marcus  Heyland,  of  the  city  of  Baltimore,  merchant, 
being  indebted  unto  divers  persons  in  England,  for  goods  and 
merchandise  purchased  of  them,  heretofore  drew  certain  bills  of 
exchange  in  favour  of  those  persons  respectively,  upon  the  house 
of  William  §'  John  Bell  S>'  Co.,  merchants  of  London,  to  amount 
of  sixteen  thousand  pounds,  sterling  money,  or  thereabouts  ;  which 
bUls  it  is  believed  have  been  accepted,  but  the  periods  for  their 
payment  not  having  yet  arrived,  it  is  not  known  whether  the  said 
bills  will,  or  will  not,  be  paid  at  maturity.  And  whereas  John  Bell, 
of  Petersburg,  in  the  State  of  Virginia,  merchant,  one  of  the  per- 
sons composing  the  aforesaid  house  of  William  &>'  John  Bell  ^'  Co., 
by  his  letters  in  behalf  of  himself  and  of  his  aforesaid  house,  bear- 
ing date  at  Petersburg  aforesaid,  the  tenth  day  of  November  last, 
and  addressed  to  the  said  Marcus  Heyland,  stating  that  he  had 
transferred  and  made  over  all  the  amount  due  by  the  said  Heyland 
for  the  goods  which  the  said  house  of  William  ^  John  Bell  ^  Co. 
accepted  to  pay  on  his  account,  to  Hugh  Thompson  of  the  city  of 
Bakimore,  merchant, — did  request  the  said  Marcus  Heyland  to 
notice  the  same,  and  to  account  with  the  said  Hugh  Thompson, 
therefor,  accordingly :  thereby  stipulating  that  his,  the  said  Hugh 
Thompson'' s,  receipts  or  discharges  of  any  kind  should  be  valid 
against   the    said  John   Bell,  or   the    house   of    William  4*  John 


152  McKIM  V.  THOMPSON. 

Bell,  or  the  house  of  William  §'  John  Bell  ts  Co.,  to  the  full 
amount  of  what  the  said  Marcus  Heyland  might  owe  or  stand 
indebted  to  the  said  house.  Mow  these  jtresents  therefore  wit- 
ness, that  in  consideration  of  the  premises  before  recited,  the 
said  Marcus  Heyland  doth  hereby  acknowledge  himself,  his  heirs, 
executors,  and  administrators,  to  be  and  stand  bound  unto  the 
said  Hugh  Thompson,  his  executors,  administrators,  and  assigns, 
in  and  for  such  balance,  or  sum  of  money  as  shall  or  may  be  found 
to  be  due,  or  owing  from  the  said  Marcus  Heyland  to  the  aforesaid 
house  of  William  ^'  John  BellSf  Co.,  on  account  of  the  transaction 
before  alluded  to,  or  otherwise,  to  the  time  of  executing  these  pre- 
sents ;  and  doth  hereby  covenant  and  agree  to  and  with  the  said 
Hugh  Thompson,  that  he,  the  said  Marcus  Heyland,  shall  and  will 
immediately  after  the  execution  of  these  presents,  proceed  to  account 
with  the  said  Hugh  Thompson  for,  and  pay  to  him,  the  amount  of 
the  aforesaid  acceptances,  in  the  same  manner  as  if  it  were  ascer- 
tained that  they  had  been  duly  honoured  and  paid  by  the  said 
William  §'  John  Bell  4*  Co. ;  and  the  said  Hugh  Thompson  doth 
hereby  covenant,  and  oblige  himself  and  the  said  house  of  William 
^  John  Bell  ^  Co.,  in  pursuance  of  the  authority  vested  in  him  for 
that  purpose,  to  allow  to  the  said  Marcus  Heyland  the  benefit  of 
the  current  exchange,  on  all  payments  made  by  him  on  the  account 
aforesaid ;  and  further  doth  hereby  bind  and  oblige  himself  to 
indemnify  the  said  Marcus  Heyland  from  and  against  all  claims  and 
demands,  that  may  be  rightfully  made  against  him  for,  or  on 
account  of  the  said  acceptances,  either  by  the  said  William  ^  John 
Bell  ^  Co.,  or  by  the  respective  holders  of  the  said  acceptances,  to 
an  amount  equal  to  the  sum  w^hich  may  be  paid  over  to  the  said 
Hugh  Thompson  in  virtue  of  this  arrangement.  In  testimony 
whereof  the  said  Marcus  Heyland  and  Hugh  Thompson  have  here- 
unto subscribed  their  names  and  affixed  their  seals,  on  the  eighth 
day  of  January,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  eleven." 

It  further  appears,  that,  subsequent  to  these  agreements,  Heyland 
did,  at  various  times,  between  the  5th  of  March  and  the  13th  of 
September,  1811,  pay  to  Thompson,  the  sum  of  ^£8889  bs.  4c?. 
sterling ;  that  the  bills,  drawn  by  Heyland,  had  been  protested  for 
non  payment,  and  then  remained  unpaid.  And  it  further  appears, 
that,  some  short  time  before  April,  1812,  Heyland  failed,  and 
obtained  the  benefit  of  the  insolvent  laws  of  this  State ;  and  that 
John  McKim,  jun^r,  and  Thomas  L.  Emory,  junh;  were  appointed 


McKiM  V.  THOMPSON.  I53 

trustees  for  the  benefit  of  his  creditors,  to  whom  he  conveyed  all 
his  property  accordingly. 

Upon  these  circumstances,  the  trustees,  McKim  and  Emory^ 
together  with  The  British  Copper  Company^  and  others,  holders 
of  the  bills  drawn  by  Ileyland,  on  the  22d  of  September,  1812, 
instituted  this  suit  against  Hugh  Thompson  and  John  Belly  the 
surviving  partner  in  this  country  of  William  ^'  John  Bell  ^  Co. 
They  alleged,  that  the  sums  of  money  received  by  Thompson 
from  Heyland,  as  shewn  by  their  exhibit  E,  amounted  to  the  sum 
of  ^£8889  bs.  4d.  sterling ;  and  prayed,  that  Thompson  might  be 
decreed  to  pay  over  to  the  trustees,  McKim  and  Emory ,  for  the 
benefit  of  the  bill  holders,  and  others,  the  creditors  of  Heyland^ 
the  amount  received  by  him  :  and  for  general  relief,  &c. 

On  the  27th  February,  1813,  the  defendant,  Hugh  Thompson, 
filed  his  answer,  in  which  he  admits,  that  the  bills  drawn  by 
Heyland,  were  accepted  as  stated ;  that  the  agreement  of  the  20th 
November,  1810,  and  that  of  the  8th  January,  1811,  were  made 
and  executed  as  stated.  And  he  then  answers  in  these  words : — • 
*'  This  defendant  avers,  that  the  said  agreement,  bearing  date  the 
8th  .January,  1811,  was  executed  at  the  instance  of  Heyland ;  but 
this  defendant  denies  that  it  was  the  intention  of  the  said  ajrree- 

C) 

ment,  or  the  understanding  of  the  parties,  or  of  the  counsel 
employed  by  them  to  reduce  it  into  form,  that  Heyland  should  be 
entitled  to  indemnity,  unless  his  payments  to  defendant  should 
exceed  the  debt  which  should  be  actually  due  from  Heyland  to  the 
house  of  Bell  ^'  Co.  The  true  purpose  of  the  agreement  being, 
that  as  Heyland  did  not  exactly  know  the  amount  wyhich  Bell  ^  Co. 
had  paid,  or  might  pay  for  him,  he  should  be  secure  of  a  restoration 
from  this  defendant  of  the  surplus  of  his  payments,  if  any  such 
there  should  be ;  and  the  language  of  the  agreement  does,  as  this 
defendant  apprehends,  indicate,  with  sufficient  explicitness,  that 
object,  which  only  this  defendant  could  have  had  any  rational 
motive  for  acceding  to,  or  the  said  Heyland  could,  with  any  appear- 
ance of  justice  or  propriety,  propose  to  him." 

And  this  defendant  further  answered,  in  these  words :  "  That  he 
does  know  Marcus  Heyland  to  be  insolvent,  and  a  bankrupt ;  that 
he  has  reason  to  believe,  that  the  affairs  of  the  house  of  William 
^  John  Bell  &•  Co.  have  been,  and  continue  to  be,  somewhat 
deranged.  But  he  is  well  informed,  that  the  high  and  improving 
prices  of  American  produce  in  England,  in  consequence  of  the  war 

20 


154  McKIM  V.  THOMPSON. 

between  that  country  and  the  United  States,  have  greatly  restored 
the  declining  affairs  of  that  house.  Defendant  did  receive  from 
Marcus  Heyland  the  sum  of  money  mentioned  in  complainants 
bill.  Defendant  did  enter  into  certain  agreements  with  Heyland, 
as  heretofore  explained  in  this  answer.  That  at  the  time  the 
money  was  paid  into  his  hands  by  Heyland,  defendant  did  not 
'  expect  it  would  be  appropriated  to  the  payment  of  Heyland' s 
creditors  in  England.  Defendant  denies,  that  said  money  was  a 
deposit  in  his  hands  for  the  use  and  benefit  of  Heyland's  creditors 
in  England." 

On  the  16th  of  July,  1821,  the  defendant,  John  Bell,  filed  his 
answer;  in  which  he  admits,  in  substance,  all  the  circumstances 
as  set  forth  by  the  plaintiffs ;  and  insists,  that  the  money  paid  over 
by  Heyland  to  Thompson,  under  the  agreement  of  the  8th  January, 
1811,  was  intended  to  be,  and  should  be,  first  applied  in  satisfaction 
of  those  bills  drawn  by  Heyland. 

The  plaintiffs,  by  their  petition,  referring  to  the  previous  pro- 
ceedings, by  which  it  appeared,  that  the  defendant,  Thompson, 
had  received  from  Heyland,  (who  was  then  dead,)  the  sum  of 
JE8889  5s.  M.  sterling,  for  the  benefit  of  the  plaintiffs,  prayed, 
that  he  should  be  ordered  to  bring  that  sum,  with  interest,  into 
court,  to  be  applied  and  distributed  under  the  direction  of  the 
Chancellor. 

14ih  December,  1822. — Johnson,  Chancellor. — Ordered,  That 
Hugh  Thompson,  the  trustee  in  the  petition  named,  bring  into  this 
court  the  sum  of  money  mentioned,  on  or  before  the  15th  day  of 
January  next,  or  shew  good  cause  why  the  same  should  not  be 
brought  in :  Provided  a  copy  of  the  petition,  and  of  tliis  order,  are 
served  on  him  before  the  last  day  of  this  month. 


It  appears  that  the  service  was  made  as  required. 

\Oth  May,  1823. — Johnson,  Chancellor. — On  the  application 
of  the  complainants,  it  is  Ordered,  that  on  the  hearing  of  the  motion 
made  for  the  purpose  of  compelling  the  defendant  to  bring  money 
into  court,  that'depositions  tfken  before  a  Justice  of  the  Peace  of 
Baltimore,  on  three  days'  notice,  be  read  in  evidence ;  and,  that 
the  complainants  be  at  liberty  to  prove  the  contents  of  any  original 
paper  or  papers,  as  well  as  the  entries  contained  in  a  book  or  books 
in  the  possession  of  the  defendant ;  the  defendant  having  first  had 
notice,  in  writing,  three   days  before  the    evidence    is   taken,  to 


McKIM  V.  THOMPSON.  I55 

produce  such  paper  or  papers,  book  or  books  :  and  that  the  motion 
be  heard  during  the  next  terra. 


Under  this  order,  proofs  were  collected  and  returned.  The 
hearing  of  this  matter  was,  by  consent,  or  from  other  causes,  from 
time  to  time  postponed.  The  defendant,  Thompson,  having  pre- 
pared and  sworn  to  a  supplemental  answer  on  the  21st  February, 
1823,  moved  for  leave  to  introduce  it  at  once  into  the  case,  without 
shewing  why  the  matter,  therein  stated,  had  not  been  set  forth  in 
his  original  answer ;  but  he  was  not  allowed  thus  to  file  it.  After- 
wards, on  the  31st  of  January,  1825,  the  defendant,  Thompson^ 
filed  a  petition,  on  oath,  in  which  he  stated,  that  he  had,  through 
inadvertence  in  one  instance,  and  for  want  of  a  knowledge  of  some 
facts,  in  other  respects,  as  to  which  he  had  since  obtained  full 
information,  misstated  several  circumstances  in  his  answer,  all  of 
which  he  prayed  leave  to  correct  by  a  supplemental  answer.  No 
order  was  passed  on  this  application ;  but,  soon  after  it  was  filed, 
the  parties  were  heard  on  the  order  of  the  14th  of  December,  1822. 

12th  February,  1825. — Bland,  Chancellor. — The  arguments  of 
counsel,  on  this  petition,  to  obtain  an  order  commanding  Hugh 
Thompson  to  bring  a  certain  sum  of  money  into  court,  have  been 
heard  and  duly  weighed,  and  the  proceedings  in  the  cause  have 
been  attentively  read  and  considered. 

This  practice  of  ordering  money  to  be  brought  into  court,  is  one 
of  very  late  origin.  Lord  Eldon  is  reported  to  have  said  in  1803, 
"  I  remember  when  the  practice  was  introduced  of  making  a 
defendant  pay  in  money,  appearing,  by  his  answer  or  examination, 
to  be  in  his  hands. "(a)  But  it  seems  to  have  been  attended  with 
so  many  beneficial  consequences,  to  have  been  so  often  resorted  to, 
and  so  many  of  the  cases  have  been  reported,  that  the  principles 
of  the  rule  by  which  the  court  is  now  governed  may  be  considered 
as  fairly  and  fully  developed.  In  the  investigation  of  the  principles 
applicable  to  this  petition  or  motion,  as  indeed  in  relation  to  every 
other  legal  inquiry',  we  should  particularly  bear  in  mind,  that  it  is 
the  reason  and  spirit  of  cases  make  the  law ;  not  the  letter  of 
particular  precedents. (&) 

It  is  held  to  be  a  fundamental  axiom,  that  the  judgment  of  a 
court  must  be  the  conclusion  of  law  arising  from  the  facts  presented 


(a)  Mills  V.  Hanson,  S  Ves.  91 ;  Gilb.  For.  Rom.  179.— (6)  Fisher  v.  Prince,  3  Burr. 
1364;  Doe  dem.  Lancashire  v.  Lancashire,  5  T.  R.  62. 


156  McKIM  V.  THOMPSON. 

to  it.  And  in  the  application  of  this  maxim,  there  is  nothing 
peculiar  in  the  character  of  the  court,  or  in  the  mode  of  judicial 
proceeding,  by  which  it  can  be  at  all  affected  or  varied.  It  is  a 
fundamental  principle  applicable  to  all  courts,  and  from  which  none 
are  allowed  to  depart.  The  judgment  of  a  court  of  law  is  the 
legal  result  of  the  facts  admitted  by  the  parties,  or  found  by  the 
jury :  and  so  too,  the  decree  of  a  court  of  chancery  is  the  result, 
according  to  principles  of  equity,  arising  from  the  facts  found  in 
the  bill,  answer,  proceedings  and  proofs.  Such  is  the  acknoM'ledged 
foundation  of  all  fmal  and  general  judgments  or  decrees. (c) 

But  interlocutory  orders  and  decrees  affecting  rights,  must,  so 
far  as  they  go,  have  a  similar  basis  ;  because,  no  court  of  judicature 
can  arbitrarily  make  a  partial,  any  more  than  a  total  disposition  of 
the  rights  of  things  or  persons,  without  such  a  foundation.  The 
judge  can  go  no  farther  than  to  apply  the  rule  to  the  case,  or  to 
pronounce  the  law  upon  the  facts,  either  partially  or  wholly.  It  is 
of  the  veiy  nature  of  judicial  power  to  be  so  limited.  It  is,  how- 
ever, of  no  importance,  as  regards  this  principle,  how  the  facts  are 
made  to  appear,  or  in  what  shape  they  are  presented  to  the  tribunal ; 
whether  by  confession  ;  by  arithmetical  calculation  ;  by  necessary 
deduction  ;  or  by  positive  and  direct  proof.  It  is  enough  that  the 
facts  are  so  placed  before  the  tribunal  as  to  preclude  all  further 
denial  of  them.  The  court  may  then  be  called  on,  in  cases  like 
this,  to  pass  an  order,  or,  in  other  words,  to  pronounce  the  equity 
resulting  from  the  facts.  Such  are  the  elementary  principles.  Let 
us  now  brins  them  near  to  the  case  under  consideration. 

In  cases  of  this  sort,  it  is  not  necessary  that  the  party  moving 
for  the  order,  should  shew  an  unquestionable  right  to  a  part,  or  to 
the  whole  of  the  money  proposed  to  be  called  in.  It  is  enough, 
that  he  shews  an  interest  in  the  safety  and  fmal  disposition  of  the 
funds.  The  general  rule  is,  that  the  plaintiff  is  solely  entitled  to 
the  fund,  or  has  acquired,  in  the  whole  of  it,  such  an  interest, 
together  with  others,  as  entitles  him,  in  his  own  behalf,  and  the 
behalf  of  those  others,  to  have  the  fund  secured  in  court,  (d) 

A  motion,  by  a  party  interested,  to  order  money  to  be  brought 
into  court,  can  only  be  founded  upon  the  allegation,  that  the  clear 
conclusion  of  law  from  the  fact  is,  that  the  person,  proposed  to  be 
called  on,  has  no  right  or  title  whatever  to  hold  the  money  of  which 
he  has  the  possession.    And,  therefore,  the  first  inquiry  is,  are  there 

(c)  Gilb.  For.  Rora.  3.5.— (rf)  Freeman  v.  Fairlie,  3  Meriv.  29. 


McKIM  V.  THOMPSON.  157 

any  facts,  then  to  be  found  in  the  cause,  warranting  such  a  con- 
clusion ?  and  next ;  if  there  are,  can  the  party  be  allowed,  at  any 
future  stage  of  the  proceedings,  to  contradict,  or  explain  them 
away?  It  is  not  necessary  to  shew,  that  the  person  called  on 
is  a  mere  trustee,  without  any  legal  control  over  the  fund :  it  is 
sufficient,  if  it  appear  that  he  has  no  equitable  right  or  title  to 
the  money  he  is  called  upon  to  produce.  As  where  an  executor 
admitted  a  balance  in  his  hands,  but  alleged,  that  an  action  at  law 
was  then  depending  against  him,  and  insisted,  that  the  fund  should 
not  be  taken  out  of  his  hands  while  he  so  remained  liable  to  be 
called  on.  But  the  court  ordered  in  the  whole  balance ;  and,  on 
a  recovery  being  had,  the  money  was  ordered  to  be  paid  to  the 
plaintiff  in  the  action,  and  not  to  the  executor. (e) 

It  is  said,  in  the  books,  that  orders  of  this  kind  were  originally 
confined  to  cases  where  the  facts  were  expressly  admitted  in  the 
defendant's  answer.  It  is  easy  to  imagine,  that  their  propriety 
was  originally  suggested  by  cases  of  that  obvious  and  unequivocal 
character ;  but  the  court,  having  been  made  acquainted  with  their 
beneficial  consequences,  soon  perceived  the  principle  on  which  they 
were  based ;  and  in  a  short  time  threw  aside  the  anomalous  and 
technical  notions  about  the  necessity  of  finding  the  facts  expressly 
admitted  in  the  answer. 

In  the  case  of  Freeman  and  Fairlie,{f)  which  was  so  cogently 
pressed  upon  the  attention  of  the  court  by  both  parties.  Lord  Eldon 
says,  "  I  think  it  right  to  say  that,  under  all  circumstances^  I  can 
take  the  personal  estate  to  have  been  in  1791,  ^£2000,  and  that 
I  may  add  the  accumulations  to  1812  ;  hut  I  have  not  in  this  answer 
any  distinct  admission,  that  he  has  laid  out  the  money  in  East 
India  securities,  in  such  a  way  as  to  enable  me  to  ascertain  and 
order  him  to  bring  in  what  is  the  fair  amount  of  the  personal 
estate."  And  in  conclusion,  the  Chancellor  ordered  the  defendant 
to  bring  in  the  sum  of  j£3680 ;  whence  it  is  clear,  that  he  felt 
himself  at  liberty  to  go  as  far  in  pronouncing  the  conclusion  of  law 
from  the  facts,  as  those  facts  were  then,  and  in  that  stage  of  the 
case,  established,  and  open  to  no  contradiction  or  explanation  in 
the  course  of  the  subsequent  proceedings.  For,  although  the 
Chancellor  took  much  pains  to  shew,  that  the  defendant  had,  by 

(€)  Yare  i'.  Harrison,  2  Cox.  377;  Mortlock  r.  Lcathes,  2  Meriv.  491;  Strange 
D.Harris,  3  Bro.  C.  C.  365 ;  Blake  v.  Blake,  2  Scho.  8c  Lefr.  26;  Rutherford  i-. 
Dawson,  2  Ball  &.  B.  17 ;  Yates  v.  Farebrother,  4  Mad.  239 ;  Johnson  v.  Aston,  1  Sim. 
&  Stu.  73 ;  Rothwell  v.  Rothwell,  2  Sim.  &.  Stu.  217.— (/)  3  Meriv.  29. 


158  McKIM  V.  THOMPSON. 

his  own  answer,  covered  himself  with  shame  ;  yet  the  order  went 
no  further  than  the  incontrovertible  facts  would  fairly  warrant ;  or, 
as  the  Chancellor  says,  "under  all  circumstances."  Hence,  if  the 
statements,  allegations,  and  then  situation  of  the  case,  in  relation 
to  the  motion,  are  of  such  a  nature  as  to  leave  the  matter  open  to 
be  affected  by  the  proofs  to  be  adduced  at  the  final  hearing,  the 
court  cannot  pass  any  interlocutory  order  or  decree  whatever  on 
the  subject. (g") 

But  in  the  case  of  Freeman  and  Fairlie,  the  facts  appear  to  have 
been  deduced,  under  all  circumstances,  from  the  answer  itself  The 
first  step  taken  to  find  facts  beyond,  but  in  the  immediate  precincts 
of  the  answer,  was,  where  a  schedule  was  referred  to  in  the  answer 
as  containing  a  correct  statement ;  the  items  of  which  schedule, 
if  added  up,  would  shew  the  sum  admitted  to  be  due.  Such  a 
form  of  admission  was,  therefore,  held  to  establish  the  facts  as 
unequivocally  as  if  the  sum  had  been  distinctly  specified  in  the 
answer  itself.  This  position  necessarily  comprehended  another 
case,  going  apparently  one  step  further,  but  which  was,  in  fact, 
precisely  the  same  in  principle ;  that  is,  where  the  party  referred 
in  his  answer  to,  and  produced  a  set  of  books  of  account,  and 
alleged,  that  they  contained  a  true  statement  of  facts.  If,  on 
referring  them  to  the  auditor,  he  reports,  that  they  shew  a  certain 
amount  to  be  in  the  defendant's  hands,  it  will  be  considered  as  an 
indirect,  but  sufficient  admission  of  such  fact ;  and  the  court  will 
order  the  money  to  be  brought  in.  (A)  But,  if  no  distinct  fact  can 
be  deduced  from  the  answer  itself,  laying  a  foundation  for  such  a 
motion,  and  the  case  is  referred  to  the  auditor,  and  the  party,  on 
his  examination  there,  makes  admissions  of  such  facts,  they  will 
be  considered  as  binding  and  conclusive  as  if  made  in  the  answer 
itself  So  much,  then,  for  the  direct  and  indirect  statements  and 
admissions  of  the  party  himself  (i) 

There  are  other  cases,  which  shew  that  the  court  has  gone 
much  further  with  the  principle,  and  distinctly  manifested  a  dispo- 
sition to  follow  it  out  in  all  its  bearings.  For,  where  a  controverted 
case  of  accounts  had  been  referred  to  the  auditor  to  adjust,  and  the 
parties  had  there  fully  contested  the  matter,  and  the  report  of  the 


(?)  Strange  v.  Harris,  3  Bro.  C.  C.  365 ;  Peacham  v.  Daw,  6  Mad.  98.— (/t)  Mills 

V.  Hanson,  8  Ves.  68,  91 ;  Hatch  v. ,  19  Ves.  116 ;  Wood  v.  Downes,  1  Ves.  & 

Bea.  49 ;  Roe  v.  Gudgeon,  Coop.  Rep.  304.— (i)  Quarrell  v.  Beckford,  14  Ves.  177; 
Vigrass  v.  Binfield,  3  Mad.  62. 


McKIM  V.  THOMPSON.  159 

auditor  shewed  a  balance  in  the  defendant's  hands,  to  which  he 
was  not  entitled  :  in  such  case,  after  the  time  allowed  to  except  to 
it,  had  expired ;  and  after  it  had  been  confirmed,  an  order  was 
granted  to  have  the  money  brought  into  court.(j)  And  this  not 
on  the  ground  of  any  admission  of  the  party ;  for  the  truth  might 
have  been,  that  he  contested  every  item  and  every  point  before  the 
auditor ;  but  upon  the  ground,  that  the  court  was  presented  with 
facts  in  that  stage  of  the  case,  which  had  been  established  in  a 
due  course  of  judicial  proceeding,  which  could  not  thereafter  be,  in 
any  manner,  questioned  or  denied  by  the  same  party ;  for  an  order 
confirming  a  report  of  the  auditor  is,  in  this  respect,  a  judgment 
of  the  court. (A:) 

The  objects  and  inducements  for  making  an  interlocutory  order, 
or  partial  decision  of  this  kind,  are  to  remove  the  fund  out  of 
danger ;  to  place  it  in  a  state  of  the  greatest  security  for  the  benefit 
of  all  concerned ;  and,  by  circumscribing  the  field  of  controversy, 
to  accelerate  the  further  progress  of  the  case,  and  save  costs  ;  since 
it  is  evident,  the  parties  will  spin  it  out  while  they  have  the  advan- 
tage of  keeping  the  money. (Z) 

Hence  it  appears,  that  those  who  make  this  motion,  must  shew, 
that,  however  much  more  may  be  due,  they  have  an  interest  in  the 
sum  of  money  proposed  to  be  called  in ;  and  that  he  who  holds  it 
in  his  possession,  has  no  equitable  right  or  title  to  it  whatever. 
And  the  facts  on  which  these  positions  are  to  be  based,  must  be 
found  in  the  case  as  it  then  stands,  either  admitted,  or  so  estab- 


{j)  Gordon  v.  Rothley,  3  Ves.  572 ;  Fox  v.  Maclcreth,  3  Bro.  C.  C.  45. 

{k)  Brown  v.  Barkham,  1  P.  Will.  653. 

Taylor  V.Wood — 25th  July,  1815. — Kilty,  Chancellor. — The  report  of  the  auditor 
in  this  case  was  filed  on  the  2oth  of  March  last,  and  having  laid  during  the  present 
term  without  any  exception  being  filed  thereto,  is  liable  to  be  confirmed,  or  otherwise 
acted  on  without  further  notice.  And  it  is  now  taken  up,  on  motion  of  the  com- 
plainant. The  balance  reported  as  due  from  or  in  tlie  hands  of  the  defendants,  Owens 
&  Smith,  is  ^'13,925  29.  Against  this  there  are  some  further  credits,  which  are 
extended,  but  not  yet  established  or  allowed,  which,  if  allowed,  would  reduce  the 
balance  to  $11,837  35. 

On  the  present  state  of  the  accounts,  it  is  Ordered,  that  the  said  Owens  &  Smith 
do  forthwith  deposit  in  the  Farmers  Bank  of  Maryland,  to  the  credit  of  the  estate  of 
William  Robb,  the  sum  of  ;fl.'13,337  35,  which  will  be  liable  to  a  deduction  and  return 
of  the  further  credits  for  expenses  and  commission,  if  allowed,  and  also  the  sum  of 
$1509,  claimed  on  account  of  A.  Stewart,  if  established.  The  balance  then  remaining 
will  be  subject  to  the  order  of  tlie  court,  on  a  further  report  to  be  made  by  the  auditor 
as  to  the  claim  of  the  creditors,  including  the  defendants. 

(/)  Roberts  v.  Hartley,  1  Bro.  C.  C.  56 ;  Gordon  v.  Rothley,  3  Ves.  572. 


160  McKIM  V.  THOMPSON. 

lished  as  to  be  open  to  no  farther  controversy  at  any  subsequent 
stage  of  the  proceedings. (??i) 

These  principles  being  settled,  the  next  inquiry  is,  how  far  the 
court  may  allow  itself  to  range  through  this  case  in  search  of  those 
facts,  which  are  to  be  thus  taken  as  admitted  or  established.  The 
plaintiffs  contend,  that  the  answer  of  a  co-defendant,  and  certain 
exhibits  and  proofs,  taken  in  express  reference  to  this  motion, 
should  be  read  and  considered.  On  the  other  hand,  the  defendant 
Thompson  urges,  that  the  very  satisfactory  explanations  of  what 
he  calls  his  supplemental  answer ;  or  at  least,  that  matter  stated  in 
his  petition,  filed  on  the  31st  of  January  last,  as  the  substance  of  a 
supplemental  answer,  which  he  ought  to  be  permitted  now  to  file, 
should  be  taken  into  view.  All  these  matters  must  be  disposed  of 
before  we  can  safely  undertake  to  bring  together  what  may  be 
considered  as  the  admitted,  or  established  facts  in  relation  to  this 
motion. 

The  answer  of  the  defendant  John  Bell,  it  has  been  urged,  may 
be  resorted  to,  as  belonging  to  the  res  gesta,  to  the  same  subject, 
either  as  direct  evidence,  or  for  explanation,  or  illustration.  It  is, 
in  general,  true,  that  the  answer  of  one  defendant  cannot  be  used 
as  evidence  for  or  against  another  defendant.  Whatever  may  be 
the  extent  of  the  exceptions  to  this  rule,  none  of  them  embrace 
this  case  \{n)  for  it  is  veiy  clear,  that  Thompson  has  made  no 
reference  to,  nor  admitted  any  thing  which  John  Bell  has  said  in 
his  answer :  nor  has  the  truth  of  any  one  of  John  BelVs  allegations 
been  put  in  issue,  before  the  auditor,  or  otherwise,  and  conclusively 
established  against  Thompson.  The  answer  of  John  Bell,  the  co- 
defendant,  cannot,  therefore,  be  allowed  to  furnish  any  of  those 
facts  on  which  the  decision  of  the  court  must  be  founded  on  this 
motion. 

The  plaintiffs  have  also  directed  the  attention  of  the  court  to  the 
exhibits  and  proofs  taken,  under  the  order  of  the  10th  of  May  last, 
in  reference  to  this  motion,  and  have  contended,  that,  in  cases  like 
this,  proofs  of  collateral  facts  and  circumstances  may  be  intro- 
duced. But  the  authorities  relied  on  to  sustain  this  position, 
point  to  an  important  distinction  in  the  classification  of  cases  of 
this  nature. 

(m)  Montgomery  v.  Clark,  2  Atk.  378 ;  Rogers  v.  Rogers,  1  Anstr.  174;  Quarrell 
r.  Beckford,  14  Ves.  177 ;  Vigrass  v.  Binfield,  3  Mad.  62 ;  Rothwell  v.  Rothwell, 
2  Sim.  &  Stu.  217.— (n)  Osborn  v.  U.  S.  Bank,  9  Wheat.  832;  Field  v.  Holland, 
6  Cran.  24. 


McKIM  V.  THOMPSON.  161 

In  cases  between  vendors  and  purchasers  of  real  estate,  the 
purshaser,  who  is  not  in  possession,  cannot  be  called  upon  to  pay 
in  the  purchase  money  until  the  title  is  completed ;  nor  will  the 
mere  fact  of  his  taking  possession,  entitle  the  vendor  to  call  upon 
him  for  the  payment  of  the  purchase  money  into  court.  But  if  the 
purchaser,  being  in  possession,  exercises  acts  of  ownership,  he  may 
be  compelled  to  pay  the  purchase  money  into  court.  And  the 
taking  possession,  and  the  acts  of  ownership,  though  not  mentioned 
in  the  bill  or  answer,  are  the  collateral  facts  which  may  be  shewn 
by  affidavits,  or  by  proofs  taken  in  a  manner  similar  to  those  offered 
upon  the  present  occasion.  But,  in  such  cases,  that  the  purchase 
money  is  due,  and  the  amount,  are  facts  admitted  and  established ; 
and  whether  it  should  be  immediately  brought  in,  or  whether  the 
purchaser  should  be  indulged  until  final  hearing,  or  how  much  short 
of  that,  are  questions  which  depend  upon  equitable  circumstances, 
not  necessarily  involved  in  the  principal  controversy,  that  never 
would  be  brought  into  view,  but  by  such  a  motion.  They  are, 
therefore,  truly  and  properly  collateral  circumstances. 

But,  in  this  case,  the  question  is,  whether,  in  the  direct  progress 
of  a  case,  it  has  been  established  or  admitted,  that  a  party  holding 
money  has  no  title  to  it ;  and  is,  therefore,  liable  to  be  called  on 
in  this  w'ay.  In  this  class  of  cases,  it  is  a  part  of  the  principal 
matter  in  controversy — one  of  the  circumstances  of  it ;  as  much  so 
as,  in  the  other  class,  between  vendor  and  purchaser,  whether  the 
purchase  money  was  really  due  or  not.  And  being  necessarily 
involved  in  the  main  question,  the  court  will  not  stop  or  delay  the 
regular  progress  of  the  case  to  investigate  or  establish  it  by 
affidavits  or  proofs  taken  out  of  the  regular  order.  The  proof  of 
possession,  and  the  acts  of  ownership,  lay  the  foundation  of  that 
equity  which  entitles  the  vendor  to  make  the  call  for  his  money 
sooner  than  he  otherwise  could  do ;  and,  in  that  class  of  cases,  it 
is  said  to  be  now  quite  decided,  that,  upon  motions  of  this  sort, 
affidavits  of  such  collateral  circumstances  may  be  read,  and  that  it 
was  a  practice  to  be  encouraged,  as  it  shortened  pleading.(o) 

But  there  is  an  obvious  distinction  between  such  collateral 
circumstances  and  peculiar  equity,  and  the  admission  or  establish- 
ment of  facts,  which  go  to  shew  the  real  title  to  the  fund  proposed 

(o)  Clarke  v.  "Wilson,  15  Vcs.  317  ;  Cutler  v.  Simons,  2  Meriv.  103  ;  Morgan  v.. 
Shaw,  2  Meriv.  138 ;  Criitchley  v.  Jernins^ham,  2  Jleriv.  .502 ;  Bramley  v.  Teal, 
3  Mad.  219 ;  "Wickham  v.  Evered,  4  Mad.  53  ;  Blackburn  r.  Starr,  6  Mad.  69  ;  Wynne 
r.  GriffiUi,  1  Sim.  &  Stu.  147;  GUI  v.  Watson,  2  Sim.  &.  Stu.  402.  .; 

21 


162  McKIM  V.  THOMPSON. 

to  be  called  in.  Therefore,  the  proofs  and  exhibits  that  have  been 
taken  and  brought  in  under  the  order  of  the  10th  of  May  last,  must, 
upon  the  present  occasion,  be  laid  aside  as  altogether  inadmissible. 

Having  thus  disposed  of  the  proffered  auxiliaries  of  the  plain- 
tiffs, let  us  now  take  a  review  of  those  tendered  by  the  defendant 
Thompson.  He  insists,  that  a  certain  paper  he  has  presented  as  a 
supplemental  answer,  ought  to  be  considered  as  an  amended  answer, 
or  that  he  ought  now  to  be  permitted  to  file  a  supplemental  answer 
as  prayed  by  his  petition. 

It  is  with  great  difficulty  permitted  to  a  defendant  to  make  any 
alteration  in  his  answer,  even  upon  a  mistake.  And  there  is  no 
instance  of  its  having  been  allowed  for  the  purpose  of  retracting  a 
clear  and  well  understood  admission.(p)  It  should  appear  due  to 
general  justice  to  permit  the  issue  to  be  altered.  The  rule  upon 
this  subject  is,  that  the  defendant  must  move  to  put  in  a  supple- 
mental answer,  and  accompany  the  motion  with  an  affidavit,  in 
which  he  must  swear,  that  when  he  put  in  the  answer,  he  did  not 
know  the  circumstances  upon  which  he  applies,  or  any  other  cir- 
cumstances upon  which  he  ought  to  have  stated  the  fact  otherwise, 
or  that  when  he  swore  to  his  original  answer,  he  meant  to  swear 
in  the  sense  in  which  he  now  desires  to  be  at  liberty  to  swear.(g) 

The  paper  tendered  as  an  amended  answer,  comes  within  no 
part  of  this  rule.  It  is  silent  as  to  the  causes  which  occasioned 
him  to  omit  mentioning  the  new  matter,  therein  contained,  in  his 
original  answer  ;  nor  does  it  say  any  thing  of  his  not  knowing  of 
the  new  circumstances  therein  disclosed.  It,  in  fact,  purports  to 
be  a  mere  additional  or  amended  answer,  proposed  to  be  put  on 
file  with  the  leave  of  the  court,  without  any  previous  affidavit, 
attempting  to  account  for  the  mistakes  or  omissions  proposed  to 
be  corrected  or  supplied.    It  must,  therefore,  be  altogether  rejected. 

But  this  defendant  has  now  filed  his  petition,  on  oath,  in  a  formal 
manner,  praying  for  leave  to  file  a  supplemental  answer.  This 
petition  points  out,  with  sufficient  certainty,  that  which  the  petitioner 
alleges  was  a  mistake  as  to  the  time  of  receiving  the  money  first 
spoken  of  in  his  answer.  But  that  part  of  the  answer,  which  is 
thus  designated  as  erroneous,  is  too  indefinite  and  obscure  to  lay 
the  foundation  of  such  an  order  as  is  asked  for  by  the  present 
motion.  It  speaks  of  "  considerable  payments,"  without  specifying 
whether  they  were  made  in  bills,  or  cash,  or  what  was  the  amount 

(p)   Pearce  v.  Grove,  3  Atk.  522.— (5)  Livesey  v.  Wilson,  1  Ves.  &.  Bea.  149. 


McKIM  V.  THOMPSON.  163 

of  all  or  any  of  them ;  nor  does  that  part  of  the  answer  make 
a  reference  to  any  other  document  by  which  the  uncertainty 
might  be  removed.  Therefore,  as  regards  the  present  motion, 
whether  the  answer  is  suffered  to  remain  as  it  now  does,  or  is 
corrected,  as  proposed,  is  of  no  kind  of  importance. 

The  Chancellor  deems  it  unnecessary  now  to  decide,  whether  a 
supplemental  answer  should  or  should  not  be  allowed  to  be  filed 
to  correct  this  alleged  mistake,  in  reference  to  the  final  hearing ; 
since  the  subject  was  not  distinctly  argued  and  presented  to  the 
court  with  that  view. 

The  second  and  third  class  of  errors  and  corrections,  stated  and 
prayed  for,  are  of  the  same  character,  and  the  same  observations 
will  apply  to  both.  The  defendant  admits  he  knew,  at  the  time 
he  answered,  that  all  right  or  claim  which  he  could,  in  any  manner, 
make  to  the  moneys  received  from  Heyland.,  could  only  be  derived 
from  the  deeds  which  had  been  previously  made  and  entered  into 
between  him  and  Heyland.  He  does  not  pretend  to  have  received 
any  money  from  Heyland,  in  any  way,  except  under  and  by  virtue 
of  those  contracts  ;  consequently,  his  right  to  hold  and  apply  it,  can 
only  be  derived  from  them.  His  answer  distinctly  enough  states 
what  he  believed  to  be  his  rights,  as  well  with  regard  to  the  then 
state  of  things,  so  far  as  they  were  known  to  him,  as  with  reference 
to  all  other  and  future  occurrences.  If  these  contracts  authorized 
Thompson  to  hold  the  fund,  in  any  way,  for  his  own  use,  the  original 
answer,  in  which  he  has,  by  explicit  reference,  embodied  those 
contracts,  as  a  part  of  it,  with  suitable  and  apt  words  for  that 
purpose,  contains  all  that  is  substantially  necessary-  for  his  defence  ; 
and,  consequently,  those  after  extensions  of  Thompson's  liability, 
and  subsequent  ascertainment  of  the  amount  of  his  claim  upon 
the  Bells,  spoken  of  in  his  petition,  are  more  proper  and  fit 
subjects  for  proof  and  adjustment,  on  the  final  hearing,  than  of  a 
supplemental  answer. 

A  supplemental  answer  is  only  intended  to  correct  the  allegations 
of  the  original  answer,  or  to  remove  from  it  dangerous  admissions, 
so  as  to  let  in  proof  on  the  hearing  of  the  real  merits  of  the  case. 
In  this  case  all  the  merits  are,  on  this  motion  at  least,  to  be  derived 
from  the  contracts  ;  and  the  answer  covers  the  whole  ground  over 
which  those  contracts  can  in  any  way  be  extended  :  consequently, 
it  is  in  all  respects  coextensive  with  all  the  real  merits  of  the  case 
in  every'  shape  whatever ;  and,  therefore,  the  supplemental  answer 
prayed  for  cannot  be  allowed. 


164  McKIM  V.  THOMPSON. 

While  we  are  in  the  way  of  removing  or  rejecting  matters  entirely 
extraneous  from  the  question  now  under  consideration,  it  may  be 
well  to  observe,  that  although  the  letter  of  the  10th  of  November, 
from  John  Bell  to  Hey  land,  may  be  used  between  the  Bells  and 
Thompson,  and  shews  the  inducement  for  entering  into  the  two 
deeds  between  Heyland  and  Thompson ;  yet,  as  it  cannot  be  allowed 
to  control  or  contradict  those  deeds,  it  must,  upon  the  present 
occasion,  be  entirely  laid  aside. 

Having  removed  from  about  this  motion,  all  matters  which  do 
not  properly  belong  to  it,  let  us  now  see  how  the  case  stands  in  its 
simple  and  reduced  form.  It  is  this : — The  trustees  for  all  the 
creditors  of  Marcus  Heyland,  appointed  under  the  insolvent  laws 
of  this  State,  together  with  sundry  of  his  specified  creditors,  now 
move  the  court  to  order  Hugh  Thompson,  a  defendant,  to  bring  into 
court  the  sum  of  eight  thousand  eight  hundred  and  eighty-nine 
pounds,  five  shillings  and  four  pence,  sterling  money  of  England, 
which  he  had  received  at  various  times  between  the  5th  of  March, 
1811,  and  the  13th  of  September  following,  as  specified  in  the 
exhibit  E,  referred  to  in  their  bill.  Which  sum  of  money,  they 
charge,  was  received  under  and  by  virtue  of  the  last  mentioned  of 
the  two  deeds  entered  into  between  Heyland  and  Thompson,  the 
one  dated  on  the  20th  of  November,  1810,  and  the  other  bearing 
date  on  the  8th  of  January,  1811.  To  this  Thompson  answers 
and  admits,  that  the  persons  named  in  the  bill  are  the  creditors  of 
Heyland,  as  stated,  and  that  the  two  deeds  were  made  and  entered 
into  as  stated ;  but  he  denies,  that  the  second  was  intended  to 
cancel  or  supersede  the  first.  And,  after  making  sundry  allegations 
about  the  true  intent,  and  the  proper  interpretation  of  those  contracts, 
and  his  right  to  hold  and  apply  the  money  received  under  them,  to 
his  own  use,  he  then  makes  a  direct  answer  to  the  bill  as  to  the 
money  which  it  alleges  to  have  been  received  by  him  as  stated  in 
the  exhibit  E,  in  these  words :  "  Defendant  did  receive  from 
Marcus  Heyland,  the  sums  of  money  mentioned  in  complainant'' s 
hill.''''  And  further,  "  that  at  the  time  the  money  was  paid4nto  his 
hands  by  Heyland,  defendant  did  not  expect  it  would  be  appropriated 
to  the  payment  of  Heyland''s  creditors  in  England." 

The  true  construction  of  written  contracts  is  a  matter  which 
belongs  exclusively  to  the  Chancellor :  no  parol  proof  can  be 
admitted  to  explain  them,  unless  in  cases  of  latent  ambiguity.  No 
such  ambiguity  exists  in  the  present  case.  Therefore,  all  the  facts 
relative   to   Thompson's    right   and   title  to  the   money  which   he 


McKIM  V.  THOMPSON.  265 

acknowledges  he  has  received  from  Heyland,  are  as  fully  before  the 
court  now  as  they  can  be  at  any  future  stage  of  the  case,  or  at  the 
final  hearing.  The  only  opening  for  any  doubt  or  hesitation  is  as 
to  the  true  intent  and  meaning  of  those  deeds.  Let  us  then  consider 
them  carefully. 

By  that  of  the  20th  of  November,  1810,  it  appears,  Heyland  had 
become  largely  indebted  to  sundry  persons  for  goods  purchased  of 
them ;  that,  to  secure  the  payment  of  those  debts,  he  had  drawn 
bills  on  the  firm  of  William  Sf  John  Bell  ^  Co.,  which  they  had 
accepted :  who  might,  therefore,  if  they  paid  those  bills,  become 
the  creditors  of  Heyland,  in  place  of  those  of  whom  he  bought  the 
goods.  After  which  the  Bells  transferred  and  made  over  this 
eventual  and  uncertain  claim  of  theirs  upon  Heyland,  to  Thompson. 
In  consideration  of  which,  Heyland  bound  himself,  by  this  contract, 
to  pay  to  Thompson  such  balance  as  might  be  found  to  be  due  from 
him,  Heyland,  to  the  Bells,  on  account  of  those  transactions,  or 
otherwise,  upon  the  fate  of  the  bills  being  known,  and  a  fair  state- 
ment of  accounts  between  Heyland  and  the  Bells. 

This  seems  to  be  the  clear  sense  and  substance  of  this  first 
agreement.  From  which  it  appears,  that  Thompson  was  put  into 
the  place  of  the  Bells ;  and,  consequently,  to  the  extent  of  their 
claim  upon  Heylajid,  heca.me  his  creditor ;  and,  as  such,  had  a  right 
to  the  funds  which  were  placed  in  his  hands  under  that  agreement. 
But  it  is  doubtful,  from  the  answer,  whether  Thompson  ever  received 
any  thing  or  not  under  this  first  agreement  exclusively ;  and,  even 
supposing  he  had,  the  amount  not  being  specified,  the  court  could 
make  no  order  on  this  motion  respecting  it. 

It  appears,  however,  that  the  sum  specified  in  the  exhibit  E, 
and  which  is  distinctly  acknowledged  to  have  been  received,  came 
to  Thompson's  hands  after  the  execution  of  the  deed  of  the  8th  of 
January ;  and,  consequently,  must  be  controlled  and  regulated 
according  to  that  contract,  and  not  the  first  deed  of  the  20th  of 
November.  Hence  it  becomes  necessary  to  proceed  directly  to 
the  consideration  of  the  second  agreement,  dated  on  the  8th 
January,  1811. 

This  contract,  after  a  recital  nearly  word  for  word  the  same,  and 
in  sense  entirely  the  same  as  the  first,  proceeds  to  declare,  that,  in 
consideration  of  the  premises,  Heyland  is  held  bound  to  pay  to 
Thompson  such  balance  as  might  be  found  due  from  Heyland  to  the 
Bells  on  account  of  those  transactions,  or  otherwise,  up  to  that 
time ;  that  Heyland  wall  ii-"mediately  proceed  to  account  with  and 


166  McKIM  V.  THOMPSON. 

pay  to  Thompson,  the  amount  of  the  aforesaid  acceptances  in  the 
same  manner  as  if  it  had  been  ascertained  they  had  been  duly  paid 
by  the  Bells ;  that  on  all  those  payments,  Heyland  was  to  be 
allowed  the  current  exchange ;  and,  further,  that  Thompson  should 
indemnify  Heyland,  to  the  amount  paid  into  Thompson's  hands  by 
Heyland,  against  all  demands  that  might  be  rightfully  made  against 
him  on  account  of  those  acceptances,  either  by  the  Bells,  or  by  the 
holders  of  them- 

By  this  deed  Heyland  does,  most  clearly  and  distinctly,  give  us 
to  understand,  that  it  was  his  intention  to  pay  all  those  of  his 
creditors  in  whose  favour  he  had  drawn  bills  on  the  Bells.  For, 
with  what  other  possible  view  could  he  have  stipulated  to  account 
with  Thompson  for  the  whole  amount  of  the  bills,  as  f  they  had 
been  actually  paid  by  the  Bells  ?  And  with  what  other  untler- 
standing  was  the  covenant  entered  into  for  an  indemnity  against  all 
those  creditors  ?  It  is  most  manifest,  therefore,  that  Heyland  placed 
this  fund  in  the  hands  of  Thompsoii  for  the  use  of  that  class  of  his, 
Heyland's,  creditors,  the  bill  holders,  whoever  they  might  be. 

But,  it  is  alleged  that  Thompson  has  a  title  to  at  least  a  share 
of  this  fund  as  the  assignee  of  the  Bells ;  and  this,  it  is  said,  is 
proved  by  the  recital  in  this  deed,  in  which  it  is  acknowledged,  that 
the  Bells  "  had  transferred  and  made  over  all  the  amount  due  by 
the  said  Heyland  for  goods  which  the  said  house  of  William  ^ 
John  Bell  Sf  Co.  accepted  to  pay  on  his  account  to  Hugh  T/wmp- 
son  ;^^  and  also  by  the  express  stipulation,  by  which  Heyland  bound 
himself  to  Thompson  for  such  balance  as  might  be  found  due  from 
him,  Heyland,  to  the  Bells,  on  account  of  those  transactions,  or 
otherwise,  to  the  time  of  executing  that  deed. 

This  position  may,  perhaps,  be  more  clearly  and  strongly  pre- 
sented in  another  form,  thus  :  Heyland  stands  indebted  to  sundry 
persons  in  the  sum,  suppose  for  example,  of  $16,000,  for  the 
payment  of  which  the  Bells  are  his  sureties ;  and,  as  such,  they 
have  paid  for  him  $4,000,  and  consequently  stand  in  the  place  of 
his  creditors  to  that  amount.  But  this  claim  of  the  Bells,  having 
been  assigned  by  them  to  Thompson,  he  has,  thus  circuitously, 
become  a  creditor  of  Heyland  to  the  amount  of  that  $4,000,  part 
of  the  original  debt  of  $16,000.  Now,  says  the  defendant's  counsel, 
Thompson  must  be  allowed  to  retain  at  least  one-fourth  of  the  fund 
which  has  been  placed  in  his  hands  for  the  payment  of  the  whole 
$16,000,  since  he,  in  fact,  stands  in  the  place  of  the  original 
creditors  to  one-fourth  of  that  whole  amount. 


McKIM  V.  THOMPSON.  167 

There  is  an  imposing  aspect  of  equity  in  this  position ;  and,  if 
the  court  felt  itself  at  liberty  to  make  free  with  the  positive  cove- 
nants of  the  parties,  there  might  be  no  difficulty  in  applying  its 
equalizing  principles  to  this  case ;  but  the  court  is  not  at  liberty  to 
reject  or  impair  the  covenant  of  indemnity  in  this  deed  of  the  8th 
of  January.  By  that  covenant,  Thompson  is  bound  to  save  Heyland 
harmless,  not  merely  against  the  Bells,  but  against  all  the  holders 
of  the  acceptances,  whoever  they  may  be,  to  the  amount  of  the 
funds  in  his  hands.  In  other  words,  he  is  thus  constituted  a  trustee 
for  the  bill  holders  of  the  funds  in  his  hands,  to  the  amount  of 
the  balance  remaining  due  and  unpaid  on  those  acceptances : 
otherwise  Heyland  would  not  be  indemnified  against  all  demands 
by  the  bill  holders,  according  to  the  express  terms  of  this  contract. 
The  expressions  in  this  deed,  "  on  account  of  the  transactions 
before  alluded  to,  or  otherwise,  to  the  time  of  executing  these 
presents,"  were  intended  merely  to  refer  to  the  means  of  ascer- 
taining the  extent  of  Heyland''s  liability  to  the  bill  holders,  and  the 
amount  of  the  funds  which  it  was  necessary  should  be  placed  in 
Thompson's  hands,  to  meet  that  liability.  The  great  leading 
object  of  Heyland  was  to  provide  for  the  payment  of  his  own 
debts  due  to  those  bill  holders.  He  had  nothing  to  do  w^ith  the 
transactions  between  Thompson  and  the  Bells,  or  with  the  debts 
due  from  the  one  to  the  other  of  them.  The  obvious  inducement 
of  Heyland  in  making  this  provision  in  favour  of  his  bill  holders 
was,  some  apprehended  inability  of  those  w^ho  had  thus  become 
his  sureties  to  them.  Hence,  whatever  might  have  been  the  nature 
or  design  of  the  assignment  of  the  claim  on  Heyland  from  the  Bells 
to  Thompson,  or  of  any  contract  between  those  parties,  that  transfer, 
or  contract,  cannot  be  permitted  to  control  or  contradict  the  positive 
and  clear  stipulations  contained  in  this  deed  of  the  8th  of  January-, 
between  Heyland  and  Thompson. 

In  short,  the  clear  and  unequivocal  objects  of  this  deed,  were  to 
place  funds  in  Thompson's  hands  to  meet  the  claims  of  those  of 
Heyland'' s  creditors  who  should  present  themselves  as  the  holders 
of  his  bills,  as  therein  described  ;  and  to  obtain  an  indemnity  and 
discharge  for  Heyland  from  every  part  of  those  claims,  so  far  as 
those  funds  would  go.  But  Thompson  does  not  pretend  that  he 
stands  here  as  a  creditor  of  Heyland,  in  the  special  character  of 
a  holder  of  all,  or  any  one  of  the  specified  acceptances ;  he  is  not, 
by  any  thing  that  is  alleged  or  appears,  a  holder  of  any  one  of  the 
designated  bills   drawn  by  Heyland.      It  might  be,  that  Heyland 


168  McKIM  V.  THOMPSON. 

looked  to  other  resources  to  pay  the  Bells  any  proportion  or  divi- 
dends which  they  might  pay  on  those  acceptances  :  and  this  seems 
plausible.  But  whatever  may  have  been  the  intention  of  the  parties 
as  to  any  matters  not  comprehended  in  the  deed,  that  contract,  in 
itself,  is  clear  and  unequivocal.  The  fund  in  Thompson' s  hands 
was  to  be  applied  to  the  satisfaction  of  the  demands  of  certain 
designated  bill  holders ;  Thompson  is  clearly  and  confessedly 
not  one  of  them  ;  he  has,  therefore,  no  right  or  title  whatever 
to  the  money  which  Heyland  had  placed  in  his  hands  for  his 
indemnification  against  them. 

It  is,  therefore.  Ordered,  that  Hugh  Thompson  bring  into  this 
court,  on  or  before  the  fourteenth  day  of  April  next,  the  sum  of 
thirty-nine  thousand  five  hundred  and  seven  dollars  and  eighty-five 
cents,  being  the  value  of  eight  thousand  eight  hundred  and  eighty- 
nine  pounds,  five  shillings  and  four  pence,  sterling  money  of  England, 
together  with  legal  interest  thereon  from  the  first  day  of  January  in 
the  year  eighteen  hundred  and  twelve,  which  sum,  it  appears  by 
the  admitted  and  incontrovertible  facts  in  this  case,  he  had  received 
from  the  said  Marcus  Heyland  previous  to  the  fourteenth  day  of 
September,  in  the  year  eighteen  hundred  and  eleven,  for  the  use 
of  said  Heyland^s  creditors,  as  specified  in  the  proceedings  in  this 
case ;  and  which  the  said  Hugh  Thompson  ought,  within  a  reason- 
able time  thereafter,  to  have  paid  to  the  said  creditors  :  Provided 
a  copy  of  this  order  be  served  on  the  said  Thompson,  on  or  before 
the  twenty-fifth  day  of  the  present  month.  And  it  is  further  ordered, 
that  the  said  sum  of  money,  with  the  interest  thereon,  when  so 
brought  into  court,  be  deposited  in  the  Farmers  Bankbf  Maryland 
to  the  credit  of  this  case,  subject  to  further  order. 


The  defendant  Thompson,  having  been  advised,  that  he  was  not 
entitled  to  an  appeal  from  this  order,  without  any  previous  appli- 
cation to  the  Chancellor  to  be  allowed  to  appeal,  on  the  17th  of 
February,  1825,  presented  a  petition  to  the  Senate,  praying  that 
the  General  Assembly  of  Maryland  would  pass  a  special  act  allow- 
ing him  the  benefit  of  an  appeal ;  and  the  plaintiffs  on  the  next 
day  presented  a  counter  petition  to  the  Senate,  which  were  both 
together  referred  to  a  committee,  who  on  the  23d  of  Februarj^, 
1825,  made  the  following  report : 

"  The  committee  to  whom  was  referred  the  petition  of  Hugh 
Thompson,  and  the  counter  petition  of  John  Mc Kim,  jimh.,  Tho- 
mas L.  Emory,  and  others,  report — That  they  have  considered  the 


McKIM  V.  THOMPSON.  169 

subject  referred  to  them  with  the  attention  which  the  large  pecu- 
niary amount,  and  the  importance  of  the  principles  involved  in  its 
considerations  demand.  The  petitioner  has  been  proceeded  against 
in  chancery  by  the  counter  petitioners  and  others,  as  a  trustee, 
holding  funds  which,  by  the  principles  of  equity,  as  it  is  said,  he 
is  bound  to  distribute  to  sundry  creditors  of  a  certain  Marcus  Hey- 
land.  The  defendant  denies  the  trust  alleged,  and  claims  the 
amount  in  his  hands  as  due  to  himself.  The  Chancellor,  by  an 
Interlocutory  order,  has  decided,  that  certain  papers  filed  as  exhi- 
bits in  the  cause,  prove  the  trust  to  exist  as  alleged,  and  has 
directed  the  fund,  amounting  to  about  $70,000,  to  be  brought  into 
court.  The  petitioner  alleges,  that  the  interlocutory  order  is  wholly 
a  manifest  violation  of  the  principles  of  chancery  law,- in  order- 
ing money  to  be  deposited  into  court  by  a  defendant,  claiming  title 
to  it,  and  more  especially  in  adopting  such  an  order  as  a  means  of 
coercion,  by  which  to  compel  a  defendant  to  a  final  decision  of  his 
cause,  without  the  proof  which  his  counsel  may  think  proper  and 
necessary ;  but  is  also  injurious  to  him  in  the  highest  degree, 
without  any  corresponding  benefit  to  the  adverse  party,  whose 
interest,  it  is  said,  will  be  promoted  by  allowing  the  defendant  to 
give  such  security  as  will  ensure  the  prompt  payment  of  the 
money,  with  the  accumulating  interest,  at  the  termination  of  the 
cause.  With  regard  to  the  correctness  of  the  decree  or  order,  the 
committee  intentionally  avoid  any  expression  of  opinion.  The 
high  authority  of  the  Chancellor,  and  the  opinions  of  the  able  and 
distinguished  counsel  who  conduct  the  cause  of  the  petitioner,  are 
opposed,  and  the  committee  gladly  avail  themselves  of  the  absence 
of  any  necessity  to  pass  between  them. 

"  In  whatever  other  respects  a  difference  of  opinion  is  found  to 
exist,  it  is  admitted  on  all  hands,  that  from  an  interlocutory  order 
to  bring  money  into  court,  tliere  is  no  appeal  by  the  existing  laws. 
Indeed,  the  nonexistence  of  such  a  right,  is  the  sole  ground  of  the 
application  now  before  the  Senate.  The  question  we  are  called  on 
to  determine,  is,  whether  it  be  advisable  to  interpose  a  special 
legislation  to  correct  an  alleged  error  of  the  Chancellor.  It  will 
at  once  occur,  that  the  affirmative  of  this  question  necessarily 
involves  the  previous  investigation  of  the  case,  and  the  decision 
that  the  Chancellor  has  erred.  It  would  seem  to  be  obvious,  that 
if  a  defendant  is  not  injured  by  a  judicial  decision,  he  can  with 
no  propriety  claim  from  the  legislature  a  special  enactment  for 
his  relief. 


170  McKIM  V.  THOMPSON. 

"  The  committee  cannot  believe  that  it  will  comport  with  tiie 
separate  and  independent  power,  which  the  Constitution  has  cau- 
tiously secured  to  the  legislative  and  judicial  departments  of  the 
government,  that  the  legislature  should  erect  itself  into  an  appellate 
tribunal  for  the  revision  of  a  judicial  opinion.  The  organization  of 
the  legislature,  and  its  mode  of  proceeding,  are  certainly  by  no 
means  calculated  to  ensure  to  parties  litigant,  a  correct  or  intelli- 
geint  decision.  If  in  the  progress  of  the  judicial  return,  and  the 
developement  of  legal  principles,  and  their  application  to  peculiar 
circumstances,  they  shall  be  found  productive  of  results  which  the 
people  of  the  State  deem  to  be  oppressive  or  inconvenient,  it 
will  at  all  times  be  the  legitimate  province  of  the  legislature, 
to  repeal  or  modify  the  law.^  Some  of  the  most  salutary  provi- 
sions of  our  code  haye  originated  from  the  inconvenient  operation 
of  general  principles  in  their  application  to  particular  cases.  But 
in  this,  as  in  all  other  ifSnstances,  individual  injury  is  to  be  sub- 
mitted tOj  when  it  can  only  be  avoided  by  endangering  the  public 
weal. 

"  The  committee  are  entirely  satisfied,  that  it  will  be  inconveni- 
ent, and  may  in  very  many  cases  be  extremely  oppressive  to  defend- 
ants in  chancery,  to  be  compelled  to  bring  money  into  court  until 
a  final  decision  upon  their  claims  to  it ;  and  still  more  inconveni- 
ence and  oppression,  they  believe,  might  grow  out  of  the  principle, 
that  an  order  to  bring  money  into  court  can  be  used  by  the  Chan- 
cellor as  a  compulsoiy  process,  whereby  litigant  defendants  shall 
be  coerced  into  an  early  decision  of  their  rights ;  and  they  would 
suggest  the  propriety  of  legislation  upon  the  subject.  But  they 
still  retain  the  opinion,  that  injurious  as  may  be  the  consequences 
of  this  decision  to  the  petitioner,  yet  the  mischief  of  special  legis- 
lation to  interrupt  the  regular  operation  of  the  course  of  judicial 
proceeding,  and  the  assumption  of  powers  which  by  the  Constitu- 
tion have  been  declared  to  belong  exclusively  to  an  independent 
department,  is  of  much  greater  concern  to  the  community.  Such 
a  precedent  would  open  the  door  to  the  introduction  of  a  class  of 
cases  not  more  to  be  dreaded  by  the  number,  than  by  the  difficulty 
of  distinguishing  their  various  grades.  From  a  state  of  perfect 
certainty,  through  all  the  intermediate  stages  of  conviction,  to  a 
state  of  perfect  doubt,  as  to  the  correctness  of  the  judicial  deci- 
sion which  shall  become  the  subject  of  relief,  the  legislature  may 
expect  to  find  itself  called  on  to  execute  this  portion  of  its  newly 
assumed  power. 


McKIM  V.  THOMPSON.  171 

*'The  committee,  in  all  the  views  in  which  they  have  been  able  to 
consider  this  subject,  find  themselves  compelled  to  adopt  the  con- 
clusion, that  the  jirayer  of  the  petitioner  ought  not  to  be  granted. 
They  therefore  recommend  the  adoption  of  the  following  reso- 
lution: 

"  Resolved^  That  the  petitioner  have  leave  to  withdraw  his 
petition." 

"  ]\Ir.  Claude  moved  to  strike  out  the  report,  and  the  question  was 
put  and  determined  in  the  negative.  The  question  was  then  put, 
Will  the  Senate  concur  in  the  report  and  assent  to  the  resolution.'' 
Determined  in  the  affirmative. "(r) 

2d  May  J  1825. — Bland,  Chancellor. — In  this  case  the  defend- 
ant, Hugh  Thompson,  by  his  counsel,  on  the  11th  of  April  last, 
moved  the  court  to  grant  an  appeal  from  its  order  of  the  12th  of 
February  last,  and  thereupon  filed  and  offered  an  appeal  bond  for 
the  approbation  of  the  Chancellor.  The  motion  was  permitted  to 
lay  over  until  the  plaintiffs  could  be  heard ;  after  which  their  coun- 
sel appeared,  and  asked  to  be  allowed  further  time  to  reply,  in 
writing,  to  the  defendant's  motion,  which  was  granted ;  and  on  the 
28th  of  the  last  month,  a  written  argument,  on  the  part  of  the 
plaintiffs,  in  opposition  to  the  motion,  was  accordingly  submitted 
to  the  Chancellor.  The  parties  having  been  thus  heard,  the  motion 
has  been  deliberately  and  maturely  considered. 

The  Chancellor  took  some  pains,  after  a  very  careful  research 
into  all  the  authorities  within  his  reach,  to  explain  the  reasons  and 
grounds  on  which  he  founded  the  order  of  the  12th  of  February 
last.  The  greater  part  of  the  debatable  ground,  occupied  in  the 
discussion  of  the  motion  for  that  order,  was  as  to  its  foundation, — 
as  to  the  kind  of  admissions,  or  state  of  things  which  would  war- 
rant its  being  made.  The  court  was,  therefore,  explicit  upon  that 
subject.  But,  whether  such  an  order  was  interlocutory  or  final — 
a  "  decretal  order"  or  not,  was  neither  mentioned  in  argument,  nor 
considered  by  the  court.  The  investigation  of  the  nature  of  the 
basis  of  such  an  order  being  a  matter  of  much  importance,  was 
however,  made  with  great  care ;  because,  upon  its  being  ascer- 
tained, whether  that  basis  was  solid  and  uniform,  or  loose  and 
shifting,  depended  the  very  interesting  question  presented  in  that 
argument — whether  such  orders  were  likely  to  be  attended  with 
good  or  ill  consequences ;  or  whether  they  were,  or  were  not  capa- 

(7)  The  Chancellor's  case,  post  000. 


172  IvIcKIM  v.  THOMPSON. 

ble  of  being  used  as  instruments  of  oppression  ?  And  it  was,  on 
finding  that  the  authorities  required  the  most  broad  and  solid 
foundation,  no  less  clear  and  strong  than  that  of  a  final  decree 
itself,  that  the  court  was  perfectly  convinced  of  their  great  utility  in 
all  cases  where  there  was  a  proper  foundation  for  making  them, 
and  that  they  were  no  more  capable  of  being  abused,  or  applied  to 
improper  purposes,  than  final  decrees  themselves. 

But  the  foundation,  or  basis  of  an  order,  does  not  determine  its 
effect  upon  the  controversy  or  the  parlies.  An  admitted,  or  incon- 
trovertible state  of  facts,  is  required  as  the  foundation  of  an  order 
to  bring  money  into  court.  As  the  foundation  of  an  order  to 
account,  it  must  appear  that  a  computation  is  necessary  relative  to 
the  matter  on  which  the  court  may  be  called  on  to  decree ;  and  to 
lay  a  proper  foundation  for  an  order  to  pay  money  out  of  court,  the 
party  claiming  it  must  show  a  clear  title  in  himself.  But  no  infer- 
ence can  be  deduced  from  the  nature  of  the  basis  of  an  order  as  to 
its  true  character,  that  is,  whether  it  be  interlocutory-  or  final,  a 
decretal  order,  or  otherwise.  Such  questions  can  only  be  deter- 
mined by  the  order  itself,  considered  in  all  its  relations  and  bear- 
ings upon  the  parties  and  upon  the  case. 

Whether  an  appeal  can  be  allowed,  as  moved  for,  must  depend 
altogether  upon,  whether  the  order. of  the  12th  of  February  last 
is  or  is  not  a  "  decretal  order,"  within  the  true  intent  and  mean- 
ing of  the  act  of  1818,  ch.  193,  s.  1.  The  English  authorities 
explain,  with  tolerable  accuracy,  the  difference  between  interlocu- 
tory and  final  decrees  in  Chancery, .  but  the  phrase,  "decretal 
order,"  seems  to  be  variously  applied,  and  to  have  no  settled  or 
distinct  meaning  or  application.  The  terra  "  order"  is  almost 
always  used  in  speaking  of  those  general  or  special  directions  by 
which  all  suits  in  chancery  are  governed,  controlled,  or  facilitated 
throughout,  or  in  the  course  of  their  progress  from  beginning  to 
end ;  and,  the  term  "  decree"  is  most  generally  applied  to  the 
decisions  of  the  <;ourt  upon  some  or  all  of  the  rights  of  the  litigating 
parties.  Hence  it  would  seem,  that  a  "  decretal  order"  can  only  be 
such  an  order  as  finally  determines  some  right  between  the  parties. 

But  we  have  a  satisfactory  and  conclusive  authority  of  our  own 
State  upon  this  question.  The  Court  of  Appeals,  in  the  case 
of  Snoioden  v.  Dorsey,(s)  say,  "  that, an  appeal  will  not  lie  from  a 
mere  interlocutory  order  by  which  nothing  is  finally  settled  between 

(s)  6H.  &.  J.  111. 


McKIM    V.  THOMPSON.  I73 

the  parties  ;"  and  "  v>-hich  was  only  preparatory  "to  a  final  decree, 
and  was  liable  to  be  reviewed  at  pleasure ;"  or  "  where  nothing 
is  done  conclusive  upon  the  Chancellor,  but  the  order  remains 
open,  subject  to  his  final  disposition,  and  may  be  rescinded  on 
motion."  Let  the  order  of  the  12th  of  Februaiy  last  be  tested 
by  this  decision  of  the  Court  of  Appeals,  and  every  difficulty  must 
be  at  once  removed ;  it  is,  upon  the  face  of  it,  merely  preparatory 
to  a  final  decree, — nothing  is  done  conclusive  upon  the  Chan- 
cellor. The  order  directs,  that  the  money  "  when  so  brought 
into  court,  be  deposited  in  the  Farmers  Bank  of  Maryland  to  the 
credit  of  this  case,  subject  to  further  order."  The  place  of  the 
deposit  of  the  money  is  ordered  to  be  changed.  It  is  to  be  made 
more  secure  for  the  benefit  of  all  concerned,  subject  to  be  disposed 
of  by  any  future  order,  or  by  the  final  decree,  in  such  proportions 
and  in  such  manner  as  the  right  and  title  of  the  parties  shall 
require.  This  order,  of  the  12th  of  February  last,  is  not  then, 
according  to  this  opinion  of  the  Court  of  Appeals,  a  "  decretal 
order."  And  the  construction,  thus  given  by  that  court,  to  the 
phrase  "decretal  order,"  in  the  act  of  1818,  accords  with  that 
which  has  been  always  heretofore  given  to  it  by  this  court. 

The  practice  of  requiring  and  giving  bond,  on  an  appeal  from  a 
decree  of  the  Court  of  Chancery,  was  very  carefully  inquired  into 
and  considered,  by  the  Chancellor  in  RinggoWs  case  •,{t)  and  in  the 
course  of  his  investigations  in  that  case,  he  became  perfectly  con- 
vinced, that  there  was  no  legislative  enactment  of  this  State  rela- 
tive to  appeal  bonds  from  the  decrees  of  the  Court  of  Chancery. 
The  act  of  1729  only  declares,  that  the  provisions  of  the  act  of 
1713,  on  the  subject  of  appeals,  so  far  as  they  relate  "  to  the  pro- 
secution of  them,"  shall  apply  to  chancery  cases ;  and,  so  far  as 
any  thing  may  be  inferred  from  what  was  done  by  the  Court  of 
Appeals  in  the  case  of  Smith  v.  Dorsey,  at  June  term  1824,  (for 
the  court  gave  no  reasons  for  their  act,)  it  appears  to  be  the  opinion 
of  that  tribunal,  that  there  is  no  act  of  assembly  requiring  a  bond 
to  be  given  on  an  appeal  from  the  Court  of  Chancery.  But  it 
would  be  obviously  impossible,  or  veiy  difficult,  to  apply  the  pro- 
visions of  the  act  of  1713,  relative  to  appeal  bonds,  on  appeals 
from  judgments  at  common  law,  to  appeals  from  the  multiform  and 
complex  decrees  of  the  Court  of  Chancer}-.  It  has,  however,  been 
the  constant  practice  to  require  bond  with  surety  on  appeals  from 

(0  Ante,  5. 


174  McKIM  V.  THOMPSON. 

tlie  Court  of  Chancery,  where  the  thing  decreed  would  be  put  or 
continued  in  jeopardy,  or  at  risk.  The  practice  upon  this  subject, 
as  heretofore  settled  and  established,  the  Chancellor  has  neither  the 
disposition  nor  the  power  to  alter  in  any  respect  whatever. 

But  if  an  appeal  would  lie  from  such  an  order  as  that  of  the 
12th  of  February  last,  and  if  the  Chancellor  could,  in  no  case,  on 
an  appeal,  as  in  England,  order  the  money  to  be  paid  into  court, 
to  remain  there  pending  the  appeal,  and  if  he  were  bound,  as  has 
been  contended,  by  positive  legislative  provisions  to  grant  the 
appeal,  on  the  parties  entering  into  bond  with  approved  surety, 
then-  it  would  be  utterly  futile  to  ask  for,  or  obtain  such  an  order  in 
any  case  whatever,  even  in  the  plainest  and  strongest  that  could 
be  imagined;  since  the  party  thus  called  on  could  always  suspend 
its  execution  at  pleasure.  The  order  in  this  case  calls  on  the 
party  to  bring  the  money  into  court,  that  the  court  itself  may  have 
it  placed  in  perfect  safety  for  the  benefit  of  all  concerned  \{il)'  not 
that  he  shall  merely  give  security  for  the  payment  of  it.  But  if  the 
party  could  appeal  from  such  an  order,  and  suspend  its  execution, 
by  giving  an  appeal  bond,  then  he  could,  in  effect,  prevent  the 
court  from  going  farther  than  barely  demanding  security  for  the 
payment  of  the  money.  The  consequence  of  which  would  be, 
that  such  orders  would  operate  partially  and  not  alike  upon  every 
citizen ;  upon  those  most  wealthy  and  best  able  to  comply,  they 
would  be  mere  cobwebs ;  but  upon  those  least  able  to  find  security 
they  would  have  their  full  and  just  effect ;  they  would  operate  as 
rigid  injunctions.  Upon  the  whole,  the  Chancellor  is  perfectly 
satisfied  that  an  appeal  cannot  be  allowed,  and  therefore. 

It  is  ordered,  That  the  motion  of  Hugh  Thompson,  to  grant  an 
appeal  from  the  order  of  this  court,  made  on  the  12th  of  February 
last,  directing  him  to  bring  a  certain  sum  of  money  into  court,  as 
therein  set  forth,  be  and  the  same  is  hereby  overruled  and  rejected. 


After  which,  on  application,  and  its  being  shewn  that  the  order 
of  the  12th  of  February  had  been  served  as  required,  an  attach- 
ment was  ordered  against  the  defendant  Thompson,  returnable 
forthwith  ;  but  it  so  happened,  that  the  process  was  never  served 


(w)  It  is  admitted  on  all  hands,  that  the  court  has,  in  all  cases,  tlie  power  to  invest 
any  money  in  its  hands  so  as  to  keep  it  productive  pending  the  litigation ;  and  there- 
fore there  can  be  no  ground  to  object,  that  if  the  money  were  called  in,  there  would 
necessarily  be  any  great  loss  of  interest  in  a  case  like  this. — Latimer  v.  Hanson, 
ante,  51. 

f 


McKIM  V.  THOMPSON.  275 

on  him.  At  the  June  term  of  1825,  of  the  Court  of  Appeals,  the 
defendant  Thompson  applied  to  that  court  for  an  order  prohibiting 
the  Chancellor  from  proceeding  pending  the  appeal,  upon  which 
an  order  was  passed  and  certified  to  the  Court  of  Chancery  accord- 
ingly. As  to  which,  see  6  H.  k,  J.  321,  334. 

The  case  having  abated  by  the  death  of  Thompson,  the  parties 
filed  an  agreement  in  the  Court  of  Chancery,  under  which  Robert 
Oliver,  as  executor  of  Thompson,  appeared  as  a  party  in  his  stead  ; 
and  upon  which  the  following  order  was  passed. 

24^A  January,  1827. — Bland,  Chancellor. — Ordered,  that  this 
case  be  and  the  same  is  hereby  referred  to  the  award  and  arbitra- 
ment of  David  B.  Ogden  and  Francis  S.  Key ;  and  if  they  differ, 
to  choose  a  third  person,  and  the  award  of  any  two,  when  filed,  to 
be  entered  as  a  decree  of  this  court,  according  to  the  terms  of  the 
aforegoing  agreement. 


After  which  the  arbitrators  made  and  filed  the  following  award  : 

"  This  cause  having  been,  by  the  agreement  of  the  parties,  and 
the  order  of  the  Chancellor,  referred  to  us,  we  have  examined  the 
record  and  considered  the  statements  of  both  parties;  and  do 
thereupon  make  the  following  award  : 

"  The  controversy  submitted  to  our  decision  by  the  parties  in  this 
case  depends  upon  the  construction  to  be  given  to  the  contract  of 
the  8th  January,  1811,  between  Heyland  and  Thompson.  The 
precedmg  contract  of  20th  November,  1810,  and  the  letter  of  John 
Bell  to  Heyland,  which  produced  it,  the  letters  of  Hugh  Thompsonj 
and  the  other  evidences  of  his  acts  and  declarations  subsequent  to 
the  contract,  have  been  considered  by  us. 

"  We  are  of  opinion,  that  the  construction  of  the  contract,  which 
the  complainants  adopt  as  the  ground  of  their  claim,  cannot  be 
sustained.  We  think  it  was  intended  to  "  assign"  to  Thompson^ 
to  secure  him  for  his  liability  for  the  Bells,  whatever  Heyland  owed, 
or  should  owe  to  the  Bells,  for  the  acceptances  they  had  paid,  or 
should  pay  for  Heyland;  that  it  w^as  meant  by  the  parties,  that  the  full 
amount  of  the  acceptances  made  by  the  Bells  for  Heyland,  should 
be  paid,  under  that  contract,  by  Heyland  to  Thompson  ;  and  that 
Thompson  should  apply  what  was  thus  paid,  as  far  as  those  accept- 
ances should  be  met  by  the  Bells,  to  secure  himself  to  that  amount, 
and  as  far  as  they  were  not  paid  by  the  Bells,  to  pay  them.  Thus 
would  Heylandh  indemnity  under  the  contract  be  complete.  What 
the  Bells  should  pay  he  would  be  clear  of,  by  the  payment,  which 


176  McKIM  V.  THOMPSON. 

they  directed  to  Thompson;  what  the  Bells  should  not  pay, 
Thompson,  out  of  the  funds  received  from  him,  was  to  pay. 

"  What  Thompson  received  under  this  contract  from  Heyland,  was 
jC;8889  5s.  Ad.,  and  his  engagement  was  to  indemnify  Heyland  from 
claims  by  the  Bells,  or  the  bill  holders,  "  to  an  amount  equal  to 
the  sum  which  might  be  paid  over  to  the  said  Tlwmpson  by  virtue 
of  said  arrangement."  We  therefore  consider,  that  if  it  appears, 
that  the  Bells  paid  on  account  of  those  acceptances,  an  amount 
equal  to  the  sum  received  by  Thompson  from  Heyland ;  and  if  it 
further  appears,  that  Thompson  is  liable  for,  or  has  paid,  on  account 
of  his  engagements  for  the  Bells,  an  amount  equal  to  what  he  has 
received  from  Heyland,  he  has  complied  with  the  contract. 

"  The  first  appears  to  be  admitted.  The  sums  paid  to  the  bill 
holders  by  the  Bells,  amount  to  a  greater  sum.  Thompson's  account 
'  against  the  Bells  shews  an  amount  due  to  him  greatly  exceeding 
the  sum  paid  him  by  Heyland.  The  bills  of  the  Whittles  and  Tucker, 
(notarial  copies  of  which  are  admitted,)  amount,  with  damages  and 
costs,  to  about  that  sum.  These  bills  Thompson  had  endorsed  and 
taken  up,  and  the  Bells  were  liable  to  him  on  them,  and  it  was  for 
them,  it  appears,  he  entered  into  the  liability ;  to  them  he  had  a 
right  to  look ;  and  although  there  is  an  expression  in  one  of  his 
letters,  that  he  meant  first  to  get  the  money  from  the  Whittles,  if 
practicable,  yet  we  do  not  think  he  was  bound  by  that  expression 
to  follow  the  Whittles  with  strict  legal  diligence.  There  is  no 
evidence  to  shew,  that  there  has  been  any  such  engagement,  or 
such  negligence  in  enforcing  it  against  the  Whittles  as  should 
absolve  the  Bells.  There  are  other  items  in  Tliompsoii's  account, 
which  we  did  not  understand  were  objected  to. 

"Upon  the  whole,  we  award  and  determine,  that  neither  the 
complainants,  the  original  bill  holders,  nor  the  assignees  of  the 
Bells,  nor  those  of  Marcus  Heyland,  have  any  claim  upon  the 
funds  received  by  Thompson  from  Heyland.  And  that  a  decree 
shall  therefore  be  made  dismissing  their  bill ;  but  without  costs. 
12th  February,  1827." 

A  decree  was  passed  accordingly  on  the  26th  February,  1827. 


JONES  V.  MAGILL.  y-jfj 


JONES  V.  MAGILL. 

An  injunction  may  be  granted  in  any  case,  on  the  bill  alone,  before  a  subpcena  has 
issued,  on  affidavit,  or  such  other  testimony  as  shews  the  truth  of  the  statements 
of  the  bill ;  except  to  stay  proceedings  at  law  to  recover  mortgaged  property.  The 
mode  of  giving  notice  of  a  motion  to  dissolve.  Exceptions  to  the  anfewer,  and  the 
motion  to  dissolve,  may  stand  for  hearing  at  the  same  time.  The  rule  further 
proceedings  may  be  entered,  during  the  sittings,  and  at  the  same  time  with  the 
entiy  of  notice  of  motion  to  dissolve,  and  may  be  enforced  at  the  same  time ;  or 
at  the  proper  time  after  the  motion  to  dissolve  has  been  disposed  of.  On  hearin"- 
the  motion,  the  plaintiff  opens  and  concludes  the  argument.  In  extraordinary 
cases,  the  injunction  is  granted  upon  terms  adapted  to  the  circumstances.  It  is  a 
general  rule,  that  where  there  are  two  or  more  defendants,  no  motion  to  dissolve 
can  be  heard  until  all  of  them  have  answered;  but  to  this  rule  there  are  exceptions. 
Where  one  of  the  defendants  has  answered,  he  may  have  the  plaintiif  compelled 
to  use  all  due  diligence  to  enforce  an  answer  from  the  other  defendants,  or  to  have 
the  case  placed  in  such  a  situation  as  to  enable  the  responding  defendant  to  move 
for  a  dissolution  of  the  injunction. 

» 
This  bill  was  filed  on  the  18th  of  January,  1825,  by  Elizabeth 

Jinn  Jones,  executrix  of  Abraham  Jones,  deceased,  against  Thomas 
Magill,  John  F.  Gittings,  and  Thomas  JY.  Harding.  The  bill  states, 
that  on  the  26th  of  October,  1818,  the  defendant  Harding,  gave 
his  note  for  the  sura  of  $500,  to  the  defendant  Gittings,  which 
was  signed  by  the  late  Abraham  Jones,  the  testator  of  the  plaintiff, 
as  surety  for  Harding  ;  that  Harding,  in  order  to  save  Jones  harm- 
less, on  the  10th  of  August,  1822,  by  a  bill  of  sale,  conveyed  to 
Alexander  Warjield  certain  negroes  and  other  personal  property,  a 
part  of  which  was  intended  for  the  security  of  Warjield,  who  was 
bound  for  Harding  in  other  cases  ;  that  after  the  death  of  the 
plaintiff's  testator,  Warjield,  on  the  5th  of  April,  1823,  by  bill  of 
sale,  conveyed  to  this  plaintiff,  two  negroes,  named  JVelson  and 
Mason,  which  were  intended  by  Harding  to  secure  the  plaintiff 
against  loss  by  the  liability  of  her  testator,  on  the  note  for  $500 ; 
that,  with  a  view  to  defraud  the  plaintiff,  those  negroes  had  been 
concealed  and  disposed  of,  out  of  this  State,  by  the  defendants 
Harding  and  Magill ;  that  on  the  11th  of  December,  1821,  Harding, 
by  bill  of  sale,  conveyed  two  negroes,  John  and  Weslley,  to  the 
defendant  Gittings,  for  the  purpose  of  securing  to  him  the  payment 
of  a  note  which  he  held  of  Harding'' s,  for  the  sum  of  $326  81 ; 
that  the  money  secured  by  those  two  notes  belonged  to  Juliet  A. 
C.  Gittings,  then  an  infant,  who  was  married,  in  January,  1823,  to 
the  defendant  Magill;  that  the  defendant  Gittings,  who  was  her 

23 


278  JONES  V.  MAGILL. 

guardian,  after  her  marriage,  assigned  those  notes,  and  with  them  the 
negroes  conveyed  to  secure  the  payment  of  the  note  for  $326  81, 
which  were  worth  more  than  that  amount,  to  Magill ;  that  Magill 
and  Harding  agreed  with  the  plaintiff,  that  those  negroes  should  be 
applied  to  the  payment  of  the  note  for  $500,  if  they  should  be 
more  than  sufficient  for  the  satisfaction  of  the  note  of  $326  81  ; 
that  the  debt  of  $326  81,  was  afterwards  settled  between  Harding 
and  Magill,  notwithstanding  which,  Magill,  on  the  17th  of  October, 
1823,  by  a  bill  of  sale,  conveyed  those  two  negroes,  John  and 
Westley,  to  Lloyd  Gittings,  in  trust,  for  the  use  of  the  infant  children 
of  Harding ;  he,  Harding,  being  then  insolvent ;  and  that  Magill 
had  brought  suit,  and  obtained  judgment  against  this  plaintiff  at 
law,  on  the  note  for  $500,  upon  which  he  had  sued  out  and  levied 
an  execution  upon  the  property  of  this  plaintiff.  Upon  which 
the  bill  prayed,  that  the  proceedings  at  law  might  be  stayed 
by  injunction  and  for  relief,  &c.  An  injunction  was  granted 
accordingly. 

On  the  16th  of  May,  1825,  the  defendant  Magill  put  in  his 
answer,  in  which  he  says,  that  the  defendant  Gittings,  as  the 
guardian  of  his,  MagilPs,  wife,  passed  a  final  account  with  the 
Orphans  Court ;  and  among  others,  assigned  to  her  the  two  notes, 
as  stated  in  the  bill ;  that  Harding,  on  the  28th  of  February,  1823, 
delivered  to  this  defendant,  the  two  negroes  John  and  Westley,  in 
full  satisfaction  of  the  note  for  $326  81,  which  sale  and  delivery  was 
fair  and  bona  fide ;  that  he  afterwards  hired  those  negroes  to  Harding ; 
that  being  moved  by  the  poor  and  destitute  situation  of  Harding, 
whose  wife  is  the  sister  of  the  wife  of  this  defendant,  he,  Magill, 
did  convey  those  negroes  in  trust  for  the  use  of  Hardingh  infant 
children,  as  stated  in  the  bill ;  and  he  denies,  that  he  ever  agreed, 
that  those  negroes  should  be  sold,  and  that  the  amount  for  which 
they  sold  over  the  sum  of  $326  81,  should  be  applied  towards  the 
payment  of  the  note  for  $500 ;  that  this  defendant  has  been  informed 
by  the  defendant  Gittings,  and  this  defendant  believes,  that  the  late 
Abraham  Jones,  the  testator  of  the  plaintiff,  was  not  the  mere  surety 
of  the  defendant  Harding  in  the  note  for  $500  ;  but  that  Jones  was 
in  fact  the  principal  debtor,  and  that  the  money  lent  on  that  note 
was  received  by  him  and  appropriated  to  his  own  use,  although 
Harding^s  signature  to  it  stood  first  in  order;  that  in  September, 
1817,  Harding,  for  money  borrowed,  gave  his  note  to  the  Bank  of 
Westminster  for  $1000,  with  Abraham  Jones,  Alexander  Warfield, 
and  Richard  Beall,  as  his  sureties ;  and,  to  save  Warjield  harmlessij 


JONES  V.  MAGILL.  I79 

made  to  him  the  bill  of  sale  of  the  10th  of  August,  1822,  which 
Nvas  intended  for  that  purpose  only,  and  not  to  secure  or  benefit 
Jones,  in  any  manner,  on  account  of  his  liability  to  Gittings 
on  the  note  for  $500 :  this  defendant  admits,  that  Warfield  did 
convey  to  the  plaintiff  two  negroes  by  the  bill  of  sale  of  the  5th 
of  April,  1823 :  but  he  denies,  that  he  had  any  knowledge  of, 
or  agency  directly  or  indirectly  in  concealing,  or  removing  those 
negroes  from  this  State ;  that  the  testator  of  the  plaintiff  in  his 
lifetime,  and  this  plaintiff,  since  his  death,  have  frequently  pro- 
mised to  pay  the  note  of  $500  to  this  defendant ;  and  finally, 
this  defendant  admits,  that  he  has  obtained  judgment  and  levied 
execution,  as  stated  in  the  bill,  and  prays  that  the  injunction  may 
be  dissolved,  &c. 

The  defendant  Harding  filed  his  answer  on  the  16th  of  May, 
1825,  in  which  he  says,  he  admits,  that  he  was  indebted  to  Magill 
as  stated ;  that,  in  consideration,  and  in  full  satisfaction  of  that 
debt,  he  conveyed  to  Mugill  the  two  negi'oes  John  and  Westley^ 
which  negroes  Magill,  whose  wife  is  the  sister  of  this  defendant's 
wife,  conveyed  in  trust  for  the  use  of  the  children  of  this  defendant, 
intending  it  as  a  gift  to  them  from  their  aunt ;  that  the  whole 
transaction  was  bona  fide,  and  without  fraud  :  tliis  defendant  denies, 
that  he  ever  agreed  with  the  plaintiff,  that  the  value  of  those  negroes, 
if  more  than  sufhcient  to  satisfy  the  note  for  $326  81,  should  be 
applied  to  the  satisfaction  of  the  note  for  $500 ;  that  this  defendant, 
at  the  instance  and  request  of  the  late  Abraham  Jones,  borrowed 
of  the  defendant  Gittings  the  sum  of  $500,  which  he  delivered  over 
to  Jones  for  his  use ;  that  they  gave  their  note  to  Gittings  for  the 
amount  so  borrowed ;  and  although  this  defendant's  name  stands 
first  in  order  as  being  apparently  the  principal  obligor ;  yet  he  is, 
in  fact,  no  more  than  the  mere  surety  of  Jones,  which  fact  is  well 
known  to  the  defendant  Gittings ;  that  this  defendant  borrowed 
from  the  Bank  of  Westminster  the  sum  of  $1000,  for  which  he 
gave  his  note  with  Abraham  Jones,  Alexander  Warfield,  and  Richard 
Beall,  as  his  sureties  ;  and  at  the  instance  of  Warfield,  and  for  the 
purpose  of  saving  him  and  his  other  sureties  harmless,  after  that 
note  had  been  reduced  by  payments  to  $730,  he  conveyed  to  him 
by  the  bill  of  sale  of  the  10th  of  August,  1S22,  property  to  the 
value  of  $1250 ;  and  this  defendant  denies,  that  it  was  intended, 
in  any  manner,  as  a  security  for  the  payment  of  the  note  of  $500  : 
this  defendant  admits,  that  he   has  sold  the  negroes,  JYelson  and 


180  JONES  V.  MAGILL. 

Mason,  and  has  appropriated  the  proceeds  of  sale  to  his  ov,ti  use  ; 
averring  that  he  was  well  justified  in  doing  so,&c. 

These  answers  not  having  been  filed  during  the  sittings  of  a 
term,  the  Chancellor  on  application  passed  the  following  order  as 
usual  in  such  cases. 

16th  May,  1825. — Bland,  Chancellor. — In  this  case  the  defend- 
ants, Thomas  Magill,  and  Thomas  A"".  Harding,  having  filed  their 
answers,  and  entered  on  the  docket  notice  of  a  motion  at  the  next 
term  to  dissolve  the  injunction  issued  in  the  said  case,  it  is 
ordered,  that  the  said  motion  stand  for  hearing  at  the  next  term, 
provided  a  copy  of  this  order  be  served  on  the  complainant  or  her 
solicitor  before  the  twentieth  day  of  June  next. 


A  copy  of  this  order  having  been  served  as  required,  and  no 
counsel  appearing  for  the  plaintiff,  the  motion  to  dissolve  the 
injunction  was  submitted  on  the  part  of  the  defendants,  Magill 
and  Harding. 

llih  August,  1825. — Bland,  Chancellor. — An  injunction,  if 
prayed  for  by  the  bill,  may  be  granted  in  any  case  on  the  bill 
alone,  before  a  subpoena  has  been  issued,  or  the  party  summoned ; 
except  to  stay  proceedings  at  law  in  an  action  of  ejectment  by  a 
lessor,  under  the  act  of  4  Geo.  2,  c.  28,  s.  3. ;  or  to  recover  mort- 
gaged property  under  the  act  of  7  Geo.  2,  c.  20,  in  which  cases  no 
relief,  or  injunction  can  be  granted  before  the  defendant  shall  have 
been  summoned  and  heard. (a)  But  in  no  case  can  an  injunction  be 
granted  on  the  bill  alone,  unless  it  be  verified  by  the  affidavit  of 
the  plaintiff;  or  of  one  of  the  plaintiffs,  where  there  are  more  than 
one ;  or,  if  the  plaintiff  be  not  a  resident  of  the  State,  by  the 
affidavit  of  some  third  person,  who  especially  shews  how  he  hap- 
pens to  have  a  knov/ledge  of  the  facts  set  forth  in  the  bill ;  or  by 
some  other  testimony  sufiScient  to  induce  the  Chancellor  to  credit 
the  bill  for  the  truth  of  its  statements. (J) 

In  ordinary  cases  the  injunction  is  simply  granted  as  prayed; 
and,  in  such  cases,  the  defendant  may,  immediately  upon  filing  his 
answer,  give  notice  to  the  plaintiff  cf  a  motion  to  dissolve  the 
injunction  to  be  heard  at  the  then  next  tenn.    If  the  answer  be  filed 


(a)  Todd  V.  Pratt,  1  II.  &.  J  465;  Eden.  Inj.  8.3.— (6)  Moore's  Lessee  z'.  Pearce, 
2  H.  &  McH.  239 ;  Schermehon  v.  L'Espenassc,  2  Dall.  360 ;  2  Ilarr.  Pra.  Cha.  221 ; 
1  Cain.  Ca.  Err.  1. 


JONES  r.  MAGILL.  Igj 

during  the  sittings(c)  of  a  term,  this  notice  can  only  be  given  by 
an  entry  of  it  upon  the  docket,  of  which  the  plaintiff  is  bound  to 
take  notice ;  or,  if  not  then  entered,  it  can  only  be  put  upon  the 
docket  at  the  next  sittings ;  and  so  on,  from  term  to  term.  But, 
if  the  answer  be  filed  after  the  close  of  the  sittings  of  a  term,  then 
the  defendant  must  make  such  an  entry  upon  the  docket,  and  also 
obtain  a  special  order,  such  as  that  which  has  been  passed  in  this 
case  ;  and  must  produce  proof  of  its  having  been  served  as  required, 
before  his  motion  can  be  heard. 

The  defendant  may,  during  the  sittings  of  a  term,  at  the  same 
time  he  enters  upon  the  docket  a  notice  of  a  motion  to  dissolve 
the  injunction,  if  the  case  be  so  situated,  that  it  lays  with  the 
plaintiff  next  to  proceed,  also  have  entered  a  rule  further  proceed- 
ings, by  the  next  term ;  so  as  to  compel  the  jolaintiff  to  proceed 
with  his  case,  in  addition  to  his  shewing  cause  upon  the  motion 
to  dissolve.  And  if  the  plaintiff  excepts  to  the  sufficiency  of 
the  answer,  such  exceptions  may  be  taken  up  and  decided 
at  the  same  time,  and  together  with  the  motion  to  dissolve. (c/) 
After  the  notice  of  a  motion  to  dissolve  has  been  given,  in 
either  of  those  modes,  and  the  rule  further  proceedings  has  been 
entered,  the  defendant  may,  at  any  time,  after  the  specified  period 
has  elapsed,  which  is  the  first  four  days  of  the  then  next  term, 
take  advantage  of  both,  at  the  same  time,  during  the  sittings 
of  any  term,  so  as  to  have  the  injunction  dissolved,  and  the  bill 
dismissed  at  once ;  without  giving  any  fresh  notice,  or  layino-  a 
new  rule.(e) 

The  motion  is  to  dissolve,  unless  cause  shewn  hy  the  plaintiff; 
and  therefore  on  the  hearing  of  it,  the  matter  is  opened  by  him,  then 
the  defendant  is  heard,  and  the  argument  is  closed  on  the  part  of 
the  plaintiff.  If  the  plaintiff  fails  to  appear  and  shew  cause,  the 
injunction  may  be  dissolved  on  such  default,  without  any  consider- 
ation by  the  court,  of  the  bill  and  answer;  which  will  become 
absolute  at  the  close  of  the  sittings  of  the  term  unless  cause  shewn. 
But,  if  the  Chancellor  is  called  on,  during  the  sittings,  as  he  may 
be,  for  his  judgment  upon  the  motion  to  dissolve,  and  he  orders  the 
injunction  to  be  dissolved,  then  it  will  not,  on  any  account,  be 
reinstated  merely  on  the  same  bill  and  answer. 


(c)  See  ante,  126,  note  (o). 

(rf)  Alexander  v.  Alexander,  MS.,  13th  Dec.  1817;  Eden  Inj.  73.— (e)  2  Mad. 
Chan.  383 ;  Navlor  v.  Taylor,  16  Ves.  127 ;  Bishton  r.  Birch,  2  Ves.  k  Bea.  40 ; 
James  v.  Biou,  3  Swan.  244 ;  Farc^uharson  v.  Pitcher,  3  Russell,  3S3. 


132  JONES  V.  MAGILL. 

In  extraordinary  cases,  however,  the  course  of  the  court  has  always 
been  varied  to  suit  the  emergency,  or  the  peculiar  circumstances. (e) 

(c)  Eden  Inj.,  235. 

Brysox  v.  Petty.— The  bill,  filed  on  the  13th  of  May  17S6,  by  Andrew  Bryson 
ao-ainst  John  Petty  and  Thomas  Rutland,  states,  that  the  plaintiff  was  the  master  and 
commander  of  the  ship  Kitty,  then  lying  in  the  harbour  of  Annapolis,  of  which  the 
defendants  were  the  owners ;  that  the  plaintiff  had  made  several  voyages  in  the  ship, 
as  master  •  and  been  under  the  necessity  of  making  sundry  disbursements,  and  incur- 
rino-  considerable  expenses  on  account  of  repairs,  Sec.  for  tlie  ship;  that  the  defend- 
ants had  refused  to  account  with,  or  reimburse  him  the  amount  thereof;  and  had,  by 
a  writ  of  replevin,  taken  the  ship,  with  her  cargo  of  salt,  from  his  possession ;  were 
about  to  send  her  out  of  the  country,  and  to  go  themselves  beyond  the  jurisdiction 
of  this  court.  Prayer  for  general  relief;  for  an  injunction  to  prevent  the  removal  of 
the  ship  and  cargo ;  and  for  a  ne  exeat  to  prohibit  the  defendants  from  leaving  the 
State.  This  bill  was  sworn  to  in  the  usual  general  manner.  And  there  does  not 
appear  to  be  any  other  specification  of  the  claim  or  amount  due  than  by  a  general 
reference  to  the  exhibits. 

ISth  May,  1786. — Rogers,  Chancellor. — Issue  snbpcena,  ne  exeat,  and  injunction 
as  prayed,  with  libert\%  nevertheless,  for  the  said  John  Pettj'  to  proceed  to  the  trial 
of  his  replevin  at  law,  but  to  stay  execution  on  any  judgment  he  may  obtain  therein, 
until  further  order.  

The  defendant,  Petty,  by  his  petition,  stated,  that  he  had  filed  his  answer,  that  the 
ship  Kitty  belonged  to  him  and  his  partner  in  England,  Joseph  Yates ;  that  the 
defendant  Rutland  had  no  interest  in  her ;  that  the  petitioner  was  anxious  to  send 
her  to  Europe,  and  had  accordingly  v\Tilten  to  have  insurance  made  on  her  voyage  ; 
that,  while  here  idle,  she  was  decaying,  and  would  be  soon  destroyed  by  the  worms ; 
that  he  was  willing  to  pay  what  might  be  found  due  the  plaintiff,  and  prayed  that  the 
injunction  might  be  dissolved  on  his  giving  bond,  &c. 

ll//t  June,  1786.— Rogers,  Chancellor. — Ordered,  that  an  account  be  adjusted, 
made  and  taken  by  auditors  of  and  upon  the  several  transactions  mentioned,  and  set 
forth  in  the  bill,  answer  and  exhibits  filed  in  the  said  cause. 


By  consent,  three  persons  were  appointed  as  auditors,  he. 

2ith  July,  1786. — Rogers,  Chancellor. — Upon  hearing  the  petition  of  John  Potty, 
one  of  the  defendants,  in  presence  of  the  parties,  by  their  counsel ;  it  is  ordered, 
that  the  injunction  issued  in  this  cause,  so  far  as  it  relates  to  the  ship  Kitty,  be  dis- 
solved upon  the  said  John  Petty  giving  bond,  with  good  surety,  to  be  lodged  in  and 
approved  by  this  court,  to  abide  by,  observe  and  perform  the  final  decree  of  this 
court ;  but  that  the  injunction  shall  continue  and  remain  in  full  force  as  to  the  salt  in 
the  said  injunction  mentioned.  

On  the  4th  December,  1786,  before  me  the  subscriber,  one  of  the  justices  of  the 
peace  for  said  count}',  personally  appeared  William  Jessop  Vickers  and  made  oath, 
that  on  the  thirtieth  day  of  November  last  he,  as  clerk  on  a  commission  from  chan- 
cerj%  wherein  Andrew  Bryson  is  complainant,  and  John  Petty  and  Thomas  Rutland 
are  defendants,  issued  a  summons  signed  Thomas  Harwood  and  John  Muir,  commis- 
sioners appointed  by  the  High  Court  of  Chancery,  to  examine  evidences  on  behalf 
of  Andrew  Bryson,  complainant,  and  John  Petty  and  Thomas  Rutland,  defendants. 
Which  siimmons  was  directed  to  the  sheriff  of  Calvert  county  to  execute,  and  is  in 
the  words  and  figures  following,  to  wit : 

"  Maryland,  set. — The  State  of  Maryland,  to  William  Richards,  now  of  Calvert 


JONES  V.  MAGILL.  283 

Where  the  equity  of  the  bill  appears  to  be  doubtful  ;  or 
where    the    magnitude,    and    nature    of    the     subject     enjoined 

county,  greeting; : — You  are  hereby  commanded,  that  all  excuses  set  apart  you  per- 
sonally be  and  appear  before  the  commissioners  appointed  by  the  High  Court  of 
Chancery,  at  tlie  city  of  Annapolis,  on  Saturday  the  second  day  of  December  next, 
to  testify  on  behalf  of  Andrew  Brj-son  complainant,  and  John  Petty  and  Thomas 
Rutland  defendants :  hereof  fail  not  as  you  will  answer  the  contrary  at  your  peril. 
Witness  our  hands  this  30th  day  of  November,  1736. — Thomas  Harwood,  John 
Muir,  commissioners.     To  the  sheriff  of  Calvert  county." 

Which  said  summons  was  duly  served  as  appears  by  the  return  on  the  back 
thereof,  to  wit : — "  Summoned.  W.  Allen,  sheriff."  This  deponent  saith,  that  although 
the  said  summons  was  duly  served  as  aforesaid,  the  said  William  Richaids  neglected 
to  appecir  according  to  the  direction  thereof,  which  prevented  the  said  commissioners 
proceeding  in  the  execution  of  said  commission. 

4th  December,  1736. — Rogers,  Chancellor. — Issue  attachment  of  contempt  against 
the  said  William  Richards,  returnable  next  court. 


No  further  proceedings  being  had  under  this  order ;  the  case  was  brought  before 
the  court  for  final  hearing. 

28ih  March,  1787. — Rogers,  Chancellor. — Decreed,  that  the  defendant  Petty  pay 
to  the  plaintiff  the  sum  of  £6-17  14s.  9d.,  with  interest  from  7th  April,  1786,  until 
paid,  and  costs ;  and  further,  that  the  defendant  Petty  give  bond,  to  be  approved  by 
the  Chancellor,  to  indemnify  the  plaintiff  for  any  claims  that  may  be  made  against 
him  on  account  of  the  ship  Kiftj- ;  and  that  the  injunction  so  far  as  respects  the  pro- 
secution of  the  replevin  remain  in  full  force,  8cc. 


The  defendant  John  Petty,  having  been  served  with  a  copy  of  the  decree ;  the 
plaintiff,  by  his  petition,  stated,  that  the  defendant  Petty  had  appealed,  but  had  not 
given  bond  ;  that  he  had  not  paid  the  sum  of  money  decreed ;  that  he  had  not  given 
the  bond  of  indemnification  decreed ;  and  that  he  had  disposed  of  the  salt,  on  which 
the  plaintiff  had  a  lien,  in  violation  of  the  injunction.  Prayer  for  a  ca.  sa.  against 
Petty  for  the  sum  decreed  ;  and  for  attachments  for  not  giving  the  bond  of  indemni- 
fication, and  for  a  breach  of  tjie  injunction. 

2i  Maij,  1787. — Rogers,  Chancellor. — Ordered,  that  ca.  m.  and  attachment  to 
compel  indemnification  according  to  decree  issue  according  to  the  prayer  of  the 
plaintiff's  petition.  

Aflcrwards'the  plaintiff  called  on  the  sheriff  to  bring  in  the  defendant  under  the 
ca.  sa.,  and  the  defendant  moved  to  set  it  aside. 

24th  May,  17S7. — Rogers,  Chancellor. — The  ca.  sa.,  in  this  case,  issued  with  pro- 
prietj',  and  the  plaintiff  ought  to  be  at  liberty  to  call  it;  auid  the  defendant  John 
Petty  being  brought  into  court,  he  is  thereupon,  on  the  prayer  of  the  plaintiff,  com- 
mitted in  execution  of  the  decree  aforesaid  to  the  sheriff  of  Ann  Arundel  county. 


Who  being  present  took  charge  of  him  accordingly,  and  committed  him  to  close 
custody  in  a  chamber  of  the  house  of  George  Mann,  (the  tavern,)  the  same  being 
used  as  a  gaol.  

McMeciien  v.  Story. — This  bill  was  filed  on  the  23d  of  December,  1806,  by 
David  McMechen  against  Thomas  Yates,  Alexander  Story,  and  The  Mayor  and  City 
Council  of  Baltimore,  to  obtain  an  injunction  to  stay  proceedings  at  law  in  a  suit 
■which  had  been  instituted  in  the  name  of  The  Mayor  and  City  Council  of  Baltimore, 


184  JONES  V.  MAGILL. 

is  such  as  to  require  a  hearing 'without  delay;  it  being 
of  a  pubHc    concern,   or  an    extensive  work   in  which   a  num- 

for  the  use  of  Alexander  Story.  It  is  stated  in  the  bill,  that  the  plaintiff  in  Januaiy, 
1799,  became  bound  by  a  joint  and  several  bond  to  the  city  of  Baltimore  as  surety 
of  the  defendant  Yates  as  an  auctioneer ;  that  afterwards  separate  suits  were  brouo-ht 
on  the  bond  against  Yates,  and  the  plaintiff,  in  the  name  of  the  city,  for  the  use  of 
Story ;  that  Yates  repeatedly  assured  the  plaintiff,  that  the  cause  of  action  should  be 
settled  and  adjusted,  and  that  he,  Yates,  would  cause  those  suits  to  be  defended,  and 
had  employed  a  lawyer  for  that  purpose ;  that  the  attorney,  instead  of  making  any 
defence,  by  the  fj-audulent  conhivance  and  misrepresentation  of  Yates,  withdrew  the 
plea  of  general  performance  of  all  the  stipulations  in  the  condition  of  the  bond ;  and 
in  May,  1S03,  confessed  judgment  for  the  sum  of  $'4154  30,  with  interest  from  the 
first  of  January,  1800,  and  a  stay  of  execution  until  the  first  of  August,  1803  ;  which 
judgment  was  afterwards  alfirmed  by  the  Court  of  Appeals  ;  that  the  claim  of  Story 
against  Yates,  upon  which  those  suits  were  brought  on  the  bond,  was  for  goods  sold 
by  Yates  as  auctioneer,  for  Story,  the  price  of  which  he  had  not  paid  over ;  which, 
not  being  a  claim  covered  by  the  terms  of  the  bond,  according  to  a  fair  construction 
of  the  city  ordinance,  in  conformity  with  which  it  was  given,  this  plaintiff  cannot 
be  held  liable  for  it ;  because  that  ordinance  requires  a  bond  from  auctioneers  to 
secure  the  payment  of  the  auction  duties  made  payable  to  the  city,  and  nothing  more. 
The  bill  having  been  filed  and  submitted, 

23d  December,  1S06. — Kilty,  Chancellor. — It  is  ordered,  that  subpcena  and  injunction 
be  issued  as  prayed.  But  the  Chancellor  considers  it  a  doubtful  case ;  and  therefore 
will,  during  the  first  four  days  of  February  term  next,  or  of  any  term  thereafter, 
hear  a  motion  for  its  dissolution.  And  tlie  register  is  directed  to  endorse  a  copy  of  this 
order  on  the  injunction.  

On  the  27th  January,  1807,  the  plaintiff,  by  his  petition  on  oath,  stated  that  as  he 
had  been  advised  his  bill  did  not  contain  all  the  necessary  parties  ;  that  he  could  not 
have  the  relief  he  was  entitled  to,  under  the  general  prayer  of  the  bill,  without  some 
additional  special  interrogatories ;  that  William  McMechen,  the  attorney  who 
appeared  for  the  defendants  in  the  suits  on  the  bond,  was  a  necessary  party;  and 
that  the  defendant  Story  was  a  citizen,  resident  of  the  Stale  of  New  York,  against 
whom,  as  such,  he  wished  to  obtain  an  order  of  publication.  Wherefore  he  prayed 
leave  to  amend  his  bill. 

2Sth  January,  1807. — Kilty,  Chancellor. — The  Chancellor  will  determine  on  this 
petition  during  the  first  week  of  the  ensuing  Februaiy  term,  which  he  considers  will 
be  in  time  to  do  justice  to  the  parties. 


The  plaintiff,  by  his  petition  filed  on  the  4th  of  February,  1807,  renewed  his  ap- 
plication for  leave  to  amend  his  bill. 

5th  Febrvanj,  1807.— Kilty,  Chancellor.— The  Chancellor  is  still  of  opinion,  that 
a  determination  on  the  petition  for  amending  the  bill  need  not  be  made  before  the 
ensuing  term.  But  as  it  is  pressed  by  the  complainant,  leave  is  given  to  amend  the 
bill  as  prayed  ;  with  the  express  proviso,  that  this  leave  shall  not  alter,  or  do  away 
the  order  of  the  23d  December  last,  that  the  Chancellor  would,  during  the  first  four 
days  of  February  term  next,  or  of  any  term  thereafter,  hear  a  motion  for  its  dis- 
solution.   

On  the  16th  of  Februaiy,  1807,  the  plaintiff  filed  his  amended  bill,  in  which  he 
states  the  fact  of  the  nonresidence  of  the  defendant  Story ;  makes  William  McMechen 
a  party ;  and  propounds  to  the  defendants  a  number  of  intfirrogatories,  which  he 


JONES  V.  MAGILL.  185 

ber   of    people    are     daily   employed,    as     a    ferry,    a    turnpike 
road,  a  canal,  a  street,  a  furnace,  a  joint  stock  cotton  factory, 

conceived  to  ba  important  and  necessary  to  help  out  the  case  he  had  set  forth  in  his 
original  bill. 

After  which,  on  the  23d  of  February,  ISO',  the  "defendants  Yates  and  The  Mayor 
and  City  Council  put  in  their  answers  separately.  Yates  admits,  that  the  judgments 
were  rendered  against  him  and  the  plaintiff  as  stated.  But  he  denies  all  fraud  and 
misrepresentation  as  charged  in  the  bill ;  and  introduces  sundry  matters  in  avoidance 
of  the  equity  on  which  the  plaintiif  founded  his  claim  to  relief.  On  the  24th  of  the 
same  month  the  defendant  McMechen  answered,  and  stated  his  knowledge  of  the 
manner  in  which  the  judgments  had  been  obtained.  And  on  the  14th  of  March, 
1807,  the  defendant  Story  filed  his  answer;  whicli  it  appears  was  sworn  to  before  a 
notary  public  of  the  State  of  New  York,  and  certified  under  his  signature  and  nota- 
rial seal. 

2\st  March,  1S07, — Kilty,  Chancellor. — This  motion  came  on  to  be  argued  on  a 
motion  to  dissolve  the  injunction,  principally  on  behalf  of  Alexander  Story,  one  of 
the  defendants  interested  in,  and  claiming  for  himself  or  his  assignee,  Thomas  C. 
Jenkins,  the  money  appearing  due  by  the  judgment  enjoined;  and  has  been  delayed 
for  further  notes  and  authorities  for  the  complainant. 

Under  the  order  of  the  23d  of  December  the  defendants  were  entitled  to  make  this 
motion  without  answering,  or  giving  notice.  But  whether  they  cannot  also  have 
the  benefit  of  the  answ-ers  filed,  is  a  question,  wliich  it  will  be  important,  as  to  the 
practice,  to  determine.  It  was  strongly  contended  by  the  complainant's  counsel,  that 
at  this  time  no  answer  could  be  considered ;  and  that  the  case  rested  on  the  pro- 
priety of  granting  the  injunction  on  the  equity  appearing  in  the  bill. 

The  Chancellor  has  seen  several  cases,  in  the  time  of  his  predecessor,  of  injunc- 
tions granted  on  similar  terms  ;  and  he  has  found  it  expedient  to  follow  those  pre- 
cedents, in  cases  which  appeared  doubtful ;  and  especially  in  those  in  which,  frwn  the 
application  having  been  delayed  till  the  last  moment,  a  further  delay,  for  the  purpose 
of  full  consideration,  would  amount  to  a  refusal ;  as  it  would  have  done  in  the  pre- 
sent case.  But  it  may  be  doubtful,  whether,  in  such  cases,  a  refusal  to  grant  the 
injunction  would  not  be  the  most  proper  course. 

When  the  bill  was  presented  to  tlie  Chancellor,  his  doubts  arose  as  to  the  effect  of 
the  manner  of  giving  the  judgment;  and  of  the  bond  under  the  ordinance  of  The 
Mayor  and  City  Council.  For  there  was  not  a  sufficient  charge  of  fraud,  by  Story, 
to  justify  an  injunction  against  him  ;  and  he  could  not  be  justly  made  answerable  for 
the  fraud  of  Yates,  as  alleged  in  the  bill.  But  supposing  it  possible  that  the  law 
might  be  as  stated  in  the  bill,  the  Chancellor  ordered  the  injunction  to  be  issued, 
with  the  proviso  before  mentioned. 

A  defendant  who  is  enjoined  from  pursuing  his  legal  remedy,  by  the  oath  of  the 
complainant  to  the  matter  stated  in  his  bill,  has  a  right  to  appear  immediately,  with- 
out waiting  for  a  subpcEna,  and  to  put  in  his  answer;  which,  if  it  denies  the  equity, 
is  generally  sufficient  to  procure  a  dissolution.  And  if  it  comes  in,  so  as  to  afford  a 
reasonable  time,  an  order  is  granted,  during  the  vacation,  for  hearing  a  motion  at  the 
first  term  thereafter,  on  notice  being  given.  And  where,  as  in  this  case,  notice  is 
previously  given,  there  is  no  rule,  or  principle  which  can  render  the  consideration 
of  an  answer  improper.  Supposing  the  hearing  to  be  only  for  the  purpose  of  decid- 
ing, whether  tiie  injunction  ought  to  have  been  granted,  ought  the  court  to  disregard 
an  answer  which  goes  to  shew,  that  the  complainant  was  not  in  fiict  entitled  to  what 
he  claimed  ?  or  should  the  injunction  be  continued  in  opposition  to  such  an  answer, 
for  the  purpose  of  taking  it  up  at  the  succeeding  term  ?    The  Chancellor  recollects 

24 


186  JONES  V.  MAGILL. 

&c. ',{/)  or  where  there  are  many  defendants  who  are  widely  dis- 
persed, or  some  of  whom  are   nonresidents,  and  it  appears,  from 

some  cases  in  which  answers  have  been  thus  put  in,  and  have  been  considered, 
without  any  objection  having  been  made.  And  he  is  clearly  of  opinion,  that  the 
answers,  as  for  as  they  are  atfected  by  this  objection,  form  a  part  of  the  case  now  for 
its  determination. 

When  tlie  bill  was  presented  to  the  Chancellor,  he  was  not  informed  of  the  opinion 
which  had  been  given  by  the  Court  of  Appeals.  A  short  copy  only  of  the  judgment 
of  that  court  was  filed,  stating  the  affirmance,  without  any  notice  of  an  opinion  having 
been  given.  (2  //.  ^  /.  41.)  The  answer  of  Story  has  been  filed  since  the  argu- 
ment ;  but  is  not  considered  as  making  any  difference  in  the  decision. 

It  is,  on  the  whole.  Ordered,  that  the  injunction  in  this  case  shall  be,  after  the  30th 
day  of  the  present  month,  dissolved  without  further  application  or  order.  Provided, 
that  if  the  complainant  shall,  on  or  before  that  day,  pay  the  amount  due  on  the  said 
judgment,  and  the  legal  costs  to  the  said  Alexander  Story,  or  his  assigns,  or  his 
counsel  in  this  suit ;  or  pay  the  same  into  this  court,  for  the  pui-pose  of  being  imme- 
diately so  paid,  an  order  for  another  injunction  will  be  issued,  if  applied  for. 


On  the  5th  of  October,  1807,  the  bill  was  dismissed  by  order  of  the  plaintiff.  After 
which,  Thomas  C.  Jenkins,  by  his  petition  stated,  that  he  had  paid  the  sum  of  ^'12  99 
for  postage,  notarial  seals.  Sec.  in  obtaining  the  answer  of  the  defendant  Story,  which 
he  prayed  to  have  allowed  to  him  ;  and,  that  the  register  be  directed  to  tax  that  amount 
with  the  costs  of  the  defendant. 

10//i  March,  180S. — Kilty,  Chancellor. — The  Chancellor  is  not  satisfied,  that  this 
charge  is  properly  taxable  in  the  costs  ;  and  the  present  state  of  the  accounts  is  a 
further  objection.  Supposing  the  petition  to  be  intended  for  an  order  to  have  those 
sums  taxed  in  or  added  to  the  costs,  it  cannot  be  granted. 


(/f  Crowder  v.  Tinkler,  19  Ves.  622 ;  Winstanley  i-.  Lee,  2  Swan.  .3.35, 
WoRTHiNGTON  V.  BicKNELL. — The  General  Assembly,  by  the  act  of  1803,  ch.  89, 
appointed  Thomas  Bicknell,  with  six  others,  commissioners  to  open  a  road,  from  a 
point  on  the  road  leading  from  the  city  of  Annapolis,  round  the  head  of  South  river, 
by  Waters'  mill,  and  the  South  river  Meetinghouse,  to  Ashton's  ford,  on  the  Patuxent, 
thence  through  Ogle's  plantation  to  intersect  the  road  leading  to  Bladensburg ;  pro- 
vided, that  they  should  not  run  it  through  the  buildings,  yards,  orchards,  gardens,  or 
meadows  of  any  one  without  his  consent.  Under  the  authority  of  this  law,  the  com- 
missioners surveyed  the  road,  along  the  route  thus  desci'ibed,  so  as  to  pass  near  the 
mill  of  John  Worthington  ;  upon  which  he  filed  a  bill  in  this  court,  on  the  11th  of 
December,  1805,  in  which  he  alleges,  that  the  commissioners  had  exceeded  the 
authority  conferred  on  them  by  tliis  law,  in  locating  the  road  in  such  a  manner  as 
most  wrongfully,  and  ruinously  to  affect  his  mill,  by  so  crossing  and  passing  along 
the  mill  race,  as  to  obstruct  or  prevent  the  water  from  flowing  to  it.  And  thereupon 
prayed  an  injunction  to  prevent  the  commissioners  from  opening  the  road,  as  thus 
located  by  them.  Which  injunction  was  granted  as  prayed.  The  commissioners 
answered  the  bill,  and  denied  the  allegations  and  opinions  as  therein  set  forth  by  the 
plaintiff.  And  the  case  was  afterwards  brought  regularly  before  the  court  on  a  motion 
to  dissolve  the  injunction. 

22fZ  Dccerrther,  1806. — Kiltv,  Chancellor. — The  motion  to  dissolve  the  injunction 
in  this  case  having  been  continued  from  the  September  term  last,  was  submitted  at 
this  term  on  notes  in  writing,  which,  together  with  the  proceedings,  have  been 
attentively  considered. 


JONES  V.  MAGILL.  187 

the  statement  in  the  bill,  that  the  facts  rest  altogether  within  the 
knowledge  of  one  or  two  of  them,  the  Chancellor  always,  in 
granting  the  injunction,  specifies  the  time  and  terms  upon  which 
a  motion  for  a  dissolution  may  be  heard.  It  is  declared,  that 
the  motion  may  be  heard  without  answer,  or  immediately  at 
the  same  term,  or  during  the  sittings  of  the  next  term  after 
the  filing  of  the  answer,  without  notice  ;  or  at  any  time,  on 
giving  so  many  days  notice,  after  filing  the  answer ;  or  on  the 
answer  of  one  or  more  of  the  defendants  before  the  others  have 


The  question  arising  in  this  case  is  an  important  one  as  it  respects  the  interests  of 
the  parties,  and  the  power  and  jurisdiction  of  this  court.  The  position  laid  down  by 
the  late  Chancellor,  and  which  appears  to  be  conformable  to  the  principles  of  a  court 
of  equity,  was,  that  this  court  ought  not  to  control  the  judgment  of  commissioners, 
in  cases  similar  to  the  present ;  who,  when  they  exercise  their  judgment  on  a  subject, 
over  which  the  law  has  invested  them  with  power;  and  determine  on  an  act  to  which 
that  power  is  competent,  cannot  with  propriety'  be  restrained. 

The  question  occurs  then,  whether,  in  this  case,  the  law  has  invested  the  commis- 
sioners with  a  power  on  the  subject  over  which  they  have  exercised  their  judgment  ? 
The  act  empowers  them  to  survey,  lay  out,  and  open  a  road  in  the  best  and  straightest 
direction  ;  and  leaves  the  manner  of  executing  it  to  their  discretion,  w"ithout  requiring 
a  confirmation  of  their  proceedings  by  the  Levy  Court,  or  any  other  tribunal.  It  was 
for  the  legislature  to  determine,  whether  such  power  should  be  given,  and  they  have 
made  no  exception  ;  but  that  of  the  buildings,  yards,  orchards,  or  meadows,  through 
which  they  are  prohibited  from  running,  without  the  owner's  consent.  But  it  is 
alleged,  that  the  commissioners,  acting  under  a  special  authority,  have  exceeded  the 
powers  vested  in  them,  by  locating  the  road  over  the  mill  race,  which  is  as  much  a 
building,  or  part  of  a  building,  as  the  mill  house.  If  the  Chancellor  could  entertain 
this  opinion,  the  injunction  would  certainly  be  made  perpetual ;  but  a  mill  race  is, 
m  no  sense,  a  building,  or  a  part  of  a  building.     {Co.  Litt.  161,  a.) 

One  of  the  grounds  for  the  injunction,  stated  in  the  bill,  is,  that  a  road  equally 
good  with  that  contemplated  by  the  commissioners,  and  as  little  expensive,  may  be 
had  by  running  it  through  the  complainant's  land  above  the  race  and  dam.  But, 
this  opinion  is  expressly  contradicted  by  the  commissioners.  Surely  this  is  a  point 
on  which  the  law  has  invested  them  with  a  power  to  decide  according  to  their 
judgment;  and  the  propriety  of  that  judgment  ought  not  to  be  questioned  by  this 
court.  So  that  this  averment,  by  the  complainant,  cannot  have  any  weight;  nor 
is  it  necessary  to  consider  the  depositions  respecting  it,  even  if,  from  the  contrariety 
of  that  sort  of  testimony,  furnished  by  the  respective  parties,  any  satisfactory  opinion 
could  be  formed. 

The  observations  of  the  complainant,  respecting  the  valuation  made  by  the  com- 
missioners, are  answered  by  referring  to  the  provision  made  by  the  act  for  an  inqui- 
sition by  a  jury  to  which  he  might  have  resorted. 

Before  a  great  public  work  should  be  impeded,  by  the  continuance  of  an  injunction, 
it  ought  to  appear  clearly  and  satisfactorily,  that  the  defendants  were  about  to  act 
contrary  to  the  law  which  gave  them  the  power,  or  to  do  acts  not  sanctioned  by  it ; 
or  in  some  other  way  to  injure  the  complainant,  so  as  to  come  within  the  established 
principles,  as  a  ground  for  their  being  restrained  by  this  court. 

Such  a  case  has  not  been  made  out  by  this  complainant,  and  It  is  therefore  ordered 
that  the  injunction  be  dissolved. 


188  JONES  V.  MAGILL. 

answered.  (^)     And  for  the  purpose  of  apprising  the  defendant  of 
those  cSpecial  terms,  upon  which  the  injunction  has  been  granted, 

(g)  Jenifer  v.  Stone. — This  bill  was  filed  on  the  29th  of  June,  1S09,  by  Daniel 
of  Saint  Thomas  Jenifer,  administrator  of  Daniel  Jenifer,  deceased,  against  Travers 
Daniel,  John  M.  Daniel,  and  Michael  J.  Stone,  suj-viving  executor  of  Thomas  Stone. 

The  bill  states,  that  the  defendan|;  Michael,  the  surviving  executor,  had,  on  the 
23d  of  October,  1306,  obtained  a  decree  in  this  court  against  the  intestate  of  this 
plaintiff,  for  the  sum  of  £1119  3s.  7d.;  that  the  defendant  Michael's  testator  left 
two  daughters,  his  only  children  and  heirs ;  one  of  whom,  Mildred,  married  the 
defendant  Travers  Daniel,  and  the  other,  Margaret,  married  the  defendant  John  M. 
Daniel ;  that  these  defendants,  Travers  and  John,  after  their  marriages,  on  the  13th 
of  January,  1798,  entered  into  a  covenant  with  the  executors  of  the  late  Thomas 
Stone,  of  whom  the  defendant  Michael  is  the  survivor,  by  which  they,  as  executors, 
were  to  be  saved  harmless  from  the  demands  of  the  creditors,  and  discharged  from  all 
liabilitj'  to  the  representatives  of  their  testator  ;  and  they,  Travers  and  John,  were 
to  use  the  names  of  the  executors,  for  the  purpose  of  collecting  and  recovering  all 
sums  due  to  their  testator;  that  this  plaintiff's  intestate  was  warned  not  to  pay  the 
amount  of  the  decree  against  him  to  this  defendant  Michael ;  in  consequence  of  which, 
and  being  assured,  and  believing,  that  the  whole  amount  was  properly  payable  to 
these  defendants,  Travers  and  John,  he  paid  in  part  satisfaction  of  the  decree,  the 
sum  of  three  hundred  pounds  to  the  defendant  Travers  ;  that  this  plaintiff  has  discov- 
ered, from  the  books  of  account  of  his  intestate,  that  there  is  a  large  sum  due  from 
the  defendant  Prlichael  to  him ;  that  the  defendant  Michael  had  caused  a  fieri  facias 
to  be  levied  on  the  estate  of  this  plaintiffs  intestate,  without  giving  credit  for  the 
amount  of  the  book  account ;  and  had  only  agreed,  that  the  payment  of  three  hundred 
pounds  should  be  suspended  until  he  should  know  the  result  of  a  suit  instituted,  in 
this  court,  against  him  by  Alexander  Scott,  for  the  recovery  of  a  debt  alleged  to  be 
due  from  his  testator ;  and  if  that  debt  was  recovered,  tl^t  then  he,  Michael,  would 
cause  the  whole  amount,  including  the  three  hundred  pounds,  to  be  levied  under  the 
fieri  facias  ;  and  it  was  in  conclusion  stated,  that  the  defendants,  Travers  and  John, 
tlien  resided  in  the  State  of  Virginia.  "Whereupon  the  plaintiff  prayed  for  an  injunc- 
tion to  stay  the  proceedings  upon  the  execution,  and  for  general  relief.  The  bill  was 
sworn  to  by  the  plaintiff. 

29//i  June,  1809. — Kilty,  Chancellor. — The  Chancellor,  after  some  hesitation  and 
doubt  on  the  subject,  has  determined  to  order  the  injunction  as  prayed.  There  would 
have  been  less  room  for  doubt,  if  the  former  complainant,  M.  J.  Stone,  had  insisted  on 
levying,  at  this  time,  the  whole  sum,  without  allowing  for  the  £, 300  paid  to  T.  Daniel ; 
but,  inasmucli  as  the  bill  alleges,  that  although  that  sura  is,  for  the  present,  suspended, 
the  said  M.  J.  Stone  declares,  that  he  will  hereafter  le\'y  it,  if  necessary ;  and  it  is  a  rule 
of  this  court  not  to  suiler  a  creditor  to  proceed  to  the  recoveiy  even  of  what  is  due,  when 
he  demands  also  what  is  not  due  ;  the  injunction  is  ordered  on  that  part  of  the  bill. 

The  Chancellor  does  not  consider  the  debt  stated  to  be  due  from  M.  J.  Stone  to 
Daniel  Jenifer,  to  be  sufficiently  established  from  the  appearance  of  the  books  ;  nor 
is  he  satisfied,  that  it  is  proper  to  be  discounted  in  this  case. 

On  account  of  the  distant  residence  of  the  defendants,  T.  and  J.  M.  Daniel,  a 
motion  to  dissolve  the  injunction  will  bs  heard  without  their  answer. 


After  wiiich  the  plaintiff,  by  his  petition,  prayed  for  leave  so  to  amend  his  bill  as 
to  aver,  that  his  intestate  had  paid  to  this  defendant,  Travers  Daniel,  through  his 
solicitor,  in  further  part  satisfaction  of  the  decree,  the  sum  of  $120,  the  vouchers  of 
which  payment  this  plaintiff  had  discovered  since  the  filing  of  his  bill. 


JONES  V.  MAGILL.  189 

the  register  is  directed  to  endorse,  or  send  a  copy  of  the  order  to 
be  served  along  with  the  writ  of  injunction. (A) 

The  defendant,  by  his  answer,  admitted  the  payment  of  the  £300,  as  alleged,  and 
that  the  decree  had  been  to  that  amount  satisfied ;  he  also  admitted,  that  the  covenant 
had  been  entered  into  with  the  defendants,  Travers  and  John,  as  stated ;  but  averred, 
that  he  had  not  been  saved  harmless,  as  stipulated ;  that  he  had  been  compelled  to  pay 
large  sums  of  money,  and  was  still  liable  for  other  claims  as  executor ;  to  meet  all 
which  he  had  a  right  to  collect  and  retain  the  balance  due  on  the  decree.  In  regju'd 
to  the  allegations  of  the  petition  to  amend,  this  defendant,  by  a  separate  answer 
thereto,  and  agreement,  admitted  the  payment  as  alleged.  After  which,  the  usual 
order  nisi  was  passed,  requiring  notice  to  be  given  to  the  plaintiif  to  shew  cause  why 
the  injunction  should  not  be  dissolved. 

On  the  22d  of  July,  IS  10,  an  answer  was  put  in  for  the  defendants,  Travers  and 
John,  apparently  in  the  handwriting  of  the  plaintifTs  solicitor;  who,  by  a  note  in 
WTiting,  agreed  to  receive  it  as  such  without  oath.  By  this  answer  these  defendants 
admitted  most  of  the  statements  in  the  bill ;  they  averred,  that  they  had  offered  and 
were  ready  to  indemnify  the  defendant  jNIichael,  according  to  their  covenant,  the  copy 
of  which,  as  exhibited  by  the  plaintiff,  they  admitted  to  be  correct ;  they  stated,  that 
they  had  filed  their  bill  in  this  court  against  the  defendant  Michael,  to  compel  him  to 
account ;  that  he  is  in  very  great  pecuniarj-  difficulties ;  and  if  he  is  permitted  to  collect 
the  balance  due  on  the  decree,  they  will.be  wholly  unable  to  recover  it  from  him. 

27th  Julij,  1810. — Kilty,  Chancellor. — The  motion  to  dissolve  the  injunction  in  this 
case  was  argued  at  the  present  term.  The  equity,  or  cause  of  complaint,  was  removed 
by  the  answer  of  M.  J.  Stone,  releasing  the  £300  paid  to  T.  Daniel.  The  petition 
to  amend,  which  was  since  filed,  respecting  the  sums  paid  to  counsel,  amountin<'  to 
120  dollars,  is  also  answered  by  the  agreement  of  M.  J.  Stone,  to  relinquish  his  claim 
to  that  amount.  So  that  there  would  be  no  grounds  for  continuing  the  injunction, 
as  between  these  parties  only.  But  the  question  is,  as  to  the  effect  of  dissolvino-  the 
injunction  between  M.  J.  Stone,  the  executor  of  T.  Stone,  and  T.  and  J.  M.  Daniel 
as  his  representatives.  And  on  the  circumstances  of  this  case,  the  Chancellor  is  of 
opinion,  that  the  interests  of  the  latter  ought  to  be  attended  to  so  far  as  to  prevent 
the  receipt  by  M.  J.  Stone  of  the  money  due  from  Jenifer  at  present.  It  may  be 
objected  to  the  bill  of  T.  and  J.  M.  Daniel,  filed  the  2d  of  July,  1810,  that  it  is  not 
on  oath ;  but  it  is  accompanied  by  a  ver}-  important  paper,  viz.  the  covenant  or 
agreement  between  them  and  the  executors  of  T.  Stone,  which  would  probably  have 
been  sufiicient  to  have  had  the  suit  against  Jenifer  entered  for  the  use  of  the  former. 

Considering  M.  J.  Stone  as  an  executor;  and,  therefore,  acting  as  a  trustee,  he 
cannot  be  injured  by  the  money  due  from  Jenifer  being  retained  until  a  final  settle- 
ment can  be  made  ;  and  as  to  his  claims,  for  payments  made,  they  art  not  set  forth 
with  sufficient  certainty  in  his  answer.  An  order  may  hereafter  be  made  for  havin"- 
the  money  levied,  and  brought  into  court ;  but,  at  present,  it  is  Ordered,  that  the 
injunction  be  continued  till  further  order ;  with  liberty,  however,  for  the  complainant, 
Jenifer,  to  bring  into  this  court  the  sum  due,  after  deducting  the  discounts  claimed, 
and  allowed,  as  appears  by  the  proceedings.  The  answer  of  T.  and  J.  M.  Daniel  to 
the  bill  of  D.  of  St.  Tho.  Jenifer,  has  not  been  considered  in  making  the  above 
decision ;  and  the  manner  in  which  it  is  put  in  is  liable  to  some  exceptions. 

After  some  other  unimportant  proceedings,  the  case  seems  to  have  abated  by 
the  death  of  the  parties. 

(A)  DiFFEXDERFFER  t'.  HiLLEN. — ^This  suit  was  instituted  on  the  10th  of  Decem- 
ber, 1808,  by  John  Diffenderffer,  Charles  Tinges,  and  George  Smith,  against  John 


190  JONES  V.  MAGILL. 

It  is  an  ancient  and  well  settled  general  rule,  that  where  there 
are  several  defendants  to  the  bill,  no  motion  to  dissolve  the  injunc- 

Hillen  and  John  Marsh.  The  bill  states,  that  before  Baltimore  was  incorporated  as 
a  city,  the  then  commissioners  of  the  town  had  so  graded  Baltimore  street  continued 
and  York  street,  from  Jones'  falls  to  Harford  street,  as  that  the  water,  falling  into 
them,  was  conveyed  in  nearly  equal  proportions  in  the  opposite  directions  to  Jones' 
falls  and  Harford  run ;  according  to  which  graduation  they  had  regulated  their  improve- 
ments ;  that  by  tlie  act  of  1796,  ch.  68,  s.  9,  the  grade  of  no  street  can  be  altered 
without  the  consent  of  the  proprietors  of  the  lots  adjoining  such  street ;  that  without 
the  consent  of  these  plaintiffs,  and  contrary  to  law,  the  defendants,  as  city  commis- 
sioners, had  altered  the  grade  of  Baltimore  and  York  streets,  whereby  there  is,  and 
will  be  a  very  considerable  increase  of  water  and  filth  conveyed  to  Jones'  falls  before 
their  property,  and  that  of  others  in  like  situation  ;  which,  especially  in  the  summer 
season,  is  matter  of  no  small  moment ;  and,  that  the  defendants  are  now  actively- 
engaged  in  cutting  down  and  adjusting  those  streets  to  the  new  graduation.  Upon 
which  the  plaintiffs  prayed  for  general  relief,  and  for  an  injunction  to  prevent  the 
alteration  of  the  grade  of  those  streets. 

10//t  December,  180S. — Kilty,  Chancellor. — From  a  perusal  of  this  bill,  and  an 
examination  of  the  act  of  Assembly  refeiTed  to,  the  Chancellor  is  at  present  of 
opinion,  that  there  is  ground  for  the  complaint  made  ;  and  that  the  injunction  ought 
to  be  granted.  Whether  the  act  of  1797,  ch.  54,  makes  any  alteration  of  the  pro- 
visions in  the  9th  section  of  the  act  of  1796,  ch.  68,  he  is  not  prepared  to  say.  But 
to  prevent  the  injury  which  might  arise  by  the  interference  of  this  court,  in  case  the 
commissioners  should  appear  to  be  acting  within  their  authority,  it  is  to  be  understood, 
that  a  motion  to  dissolve  the  injunction  will  be  heard  at  any  time,  on  such  notice  as 
shall  be  directed,  either  before,  or  after  answer.  The  injunction  to  be  issued  as 
prayed,  and  this  order  copied  thereon. 


On  the  12th  of  December,  1808,  the  defendant  Hillen  alone  put  in  his  answer,  in 
which  he  stated,  that  the  alteration  in  the  grade  of  the  streets,  as  stated  in  the  bill, 
had  been  made  with  the  consent  of  the  proprietors  of  the  immediately  adjacent  lots ; 
that  the  plaintiffs  owned  no  lots  nearer  than  from  six  to  nine  hundred  feet  from  those 
streets ;  and  that  these  defendants  then  had  employed  nearly  twenty  labourers,  with 
carts,  making  the  alterations  in  those  streets  ;  which,  when  made,  would  be  highly 
beneficial  to  the  public  in  general.  Upon  which  this  defendant  moved  to  have  a  day 
appointed  to  hear  a  motion  to  dissolve. 

12//t  December,  1808. — Kilty,  Chancellor. — Ordered,  that  a  motion  for  dissolving 
the  injunction  be  heard  on  the  20th  instant ;  provided  a  copy  of  this  order  be  served 
on  either  of  the  complainants,  or  their  solicitor,  on  or  before  the  IStli  instant. 


The  plaintiffs'  solicitor  admitted  the  service  of  a  copy  of  this  order,  and  the  motion 
came  on  to  be  heard. 

20//t  December,  1808. — Kilty,  Chancellor. — The  motion  for  the  dissolution  of  the 
injunction  issued  on  the  10th  instant  was,  according  to  appointment,  argued  on 
tliis  day. 

Although  the  presumption  is,  and  ought  to  be,  that  persons  acting  under  the  charter 
and  ordinances  of  a  corporation,  will  conform  to  the  limitations  therein  contained; 
yet  when  a  case  is  stated,  on  oath,  which  apparently  shews  a  contrary  proceeding, 
it  becomes  the  duty  of  this  court  to  interfere.  The  answer  of  the  defendant,  denying 
the  grounds  of  the  application,  is,  however,  entitled  to  equal  attention.  The  Chan- 
cellor was  under  the  impression,  from  the  bill,  that  some  of  the  parties  held  property 


JONES  V.  MAGILL.  jgj 

tion  can  be  heard  until  all  of  them  have  answered.  (^■)  But  to  this, 
as  to  all  other  general  rules,  there  are  exceptions.     As  where  the 

immediately,  or  very  nearly  fronting  on  the  part  of  the  street  in  which  the  work  was 
to  be  done.  And  he  was  not,  nor  is  he  now  satisfied,  that  the  consent  of  every  person, 
holding  property  fronting  on  Baltimore  street  and  York  street,  was  necessary  to  be 
obtained.  And,  from  tlie  exhibits  filed  with  the  answer,  there  is  reason  at  least  to 
doubt  whether  the  commissioners  have  acted  wrong ;  if  not  to  believe,  that  they  have 
acted  right. 

It  is  thereupon  adjudged  and  ordered,  that  the  injunction  heretofore  issued  in  this 
case  be  and  the  same  is  hereby  dissolved ;  leaving  the  parties  to  proceed  in  equity  or 
at  law  as  they  may  think  proper.  

After  which,  on  the  7tli  of  July,  1809,  this  suit  was  dismissed,  with  costs,  by  the 
complainants'  solicitor.  Whereupon  the  defendants  obtained  a  bill  of  their  costs 
from  the  register,  and  moved,  tliat  the  plaintiffs  might  be  ordered  to  pay  the 
amount. 

iWi  March,  1811. — Kilty,  Chancellor. — On  motion,  on  behalf  of  the  defendants, 
it  is  Ordered,  that  the  complainants,  John  Diffenderffer,  Charles  Tinges,  and  George 
Smith,  pay  to  the  defendants,  or  either  of  them,  or  to  their  solicitor,  or  their  or  his 
order,  the  sum  of  twenty  dollars  fifty  seven  and  one-half  cents  ;  being  the  amount  of 
tlie  costs  taxed  by  the  register  on  the  dismissal  of  the  bill  of  the  said  complainants ; 
or  that  they  shew  cause  to  the  contrary  on  or  before  the  10th  day  of  April  next. 
Provided  a  copy  of  this  order  be  served  on  the  said  complainants,  or  either  of  them, 
or  left  at  the  place  of  abode  of  any  one  of  them,  before  the  first  day  of  April  next. 

(i)  Pra.  Reg.  200  ;  2  Harr.  Pra.  Chan.  263 ;  3  Bac.  Abr.  658 ;  Eden  Inj.  66 ;  Wright 
V.  Nutt,  2  Dick.  691. 

Stewart  v.  Barry. — This  bill  was  filed  on  the  31st  of  August,  1809,  by  James 
Stewart,  William  Lorman,  and  William  Gwynn,  as  executors  of  the  late  William 
Evans,  against  Robert  Barry,  John  Stewart,  David  McMechen,  and  Thomas  Yates — 
in  which  it  is  stated,  that  the  defendants  Barry  and  Stewart  were  the  assignees  of  the 
defendant  Yates,  a  bankrupt ;  that  as  assignees  they  set  up  for  sale,  at  public  auction, 
a  piece  of  land  called  Springfield,  the  title  to  which  was  represented  as  clear-  and 
unquestionable,  and  the  late  William  Evans  became  the  purchaser,  for  the  sum  of 
$29,169  82;  that  all  these  transactions  took  place  with  the  knowledge  and  concur- 
rence of  the  defendant  McMechen,  who  held  a  mortgage  on  the  land,  at  the  time,  to 
secure  a  large  debt  due  to  him ;  that  the  late-  William  Evans  was  put  into  possession 
of  the  land ;  and,  under  an  impression  that  the  title  of  the  vendors  was  good,  he  had 
paid  a  part  of  the  purchase  money  ;  that  it  has  been  since  ascertained,  that  the  title 
is  much  encumbered  and  entirely  defective  ;  and  that  since  the  death  of  Evans,  the 
assignees  of  the  bankrupt  had  instituted  suit,  and  recovered  judgment  against  these 
plaintiffs  for  the  balance  of  the  purchase  money.  Whereupon  the  plaintiffs  prayed, 
that  the  sale  might  be  vacated,  &c. ;  and,  that  they  might  have  an  injunction  to  stay 
the  proceedings  at  law  against  them. 

It  appears,  that  at  the  time  when  this  bill  was  filed,  the  Chancellor  was  absent; 
and,  according  to  the  long  established  course,  under  such  circumstances,  it  was 
submitted  to  a  solicitor  of  the  court,  who  was  in  no  way  concerned  in  the  case ; 
who  declared,  and  endorsed  it  on  the  bill  as  his  opinion,  that  it  contained  sufficient 
equity  to  authorize  the  issuing  of  an  injunction.  Uj)on  which  sanction  the  register 
issued  the  injunction  as  prayed,  subject  to  the  opinion  of  the  Chancellor,  on  his 
return  to  the  seat  of  the  court.  And  on  the  7th  of  September,  1809,  the  solicitor's 
order  for  the  injunction  was  confirmed  by  the  Chancellor  himself. 

On  the  5th  of  Deceinber,  1809,  the  defendant  McMechen  put  in  his  answer,  in 


192  JONES  V.  MAGILL. 

trustee  and  cestui  que  trust  were  both  made  defendants,  and  the 
trustee  would  not  answer,  a  motion  to  dissolve  was  permitted  to  be 

which  he  admits  the  sale  as  stated  ;  but  denies,  in  general  terms,  the  alleged  delects 
in  the  title  ;  and  then  sets  forth  various  particulars,  not  responsive  to  the  bill,  going 
to  shew,  as  he  avers,  that  the  vendors  had  a  good  and  valid  title  ;  that  he  alone,  from 
the  peculiar  nature  of  the  case,  was  interested  in  having  the  injunction  speedily- 
dissolved.  See.  Upon  the  tiling  of  his  answer,  and  before  the  other  defendants  had 
answered,  he  entered  upon  the  docket  and  gave  notice  of  a  motion  to  dissolve  the 
injunction. 

On  the  20th  of  February,  ISIO,  the  other  defendants  put  in  their  answers  separately, 
in  which  they  admit,  that  the  sale  was  made  as  stated  by  the  plaintiiis ;  but  deny  that 
there  was  any  misrepresentation,  or  defect  of  title.  After  which,  the  motion  to  dissolve 
the  injunction  was  brought  on  to  be  heard,  on  the  notice  which  had  been  given  imme- 
diately after  filing  the  answer  of  the  defendant  McMechen. 

7ih  March,  1810. — Kilty,  Chancellor. — Before  the  expiration  of  the  time  limited 
by  the  order,  passed  on  the  first  or  second  day  of  the  term  for  the  dissolution  of  the 
injunction  nisi,  the  counsel  for  the  complainants  shewed  cause  to  the  contrary,  which 
was  noted  on  the  docket.  It  was  objected,  on  their  part,  that  the  notice  of  motion  to 
dissolve  was  entered  on  the  answer  of  the  defendant  McMechen  only ;  and,  that  the 
answers  of  the  other  defendants  were  afterwards  put  in  without  a  repetition  of  the 
notice.  The  Chancellor  considers,  that,  according  to  the  rules  and  practice  of  the 
court,  the  defendants  are  not  entitled  to  a  hearing  of  their  motion  at  this  term.  It  is 
thereupon  continued  till  the  next  term,  to  be  then  heard ;  but  it  will  be  in  the  power 
of  the  defendants,  if  they  think  proper,  to  give  notice  also  of  the  motion  to  be  then 
made.  

The  defendants  then  gave  notice  of  a  motion  to  dissolve  the  injunction  at  the  next 
term,  when  it  was  regularly  brought  before  the  court. 

9/A  July,  ISIO. — Kilty,  Chancellor. — The  motion  for  dissolving  the  injunction  in 
this  case,  came  on  to  be  argued  according  to  the  notice  given,  since  which  the  bill, 
answer,  and  exhibits,  have  been  considered. 

The  ground  of  the  complainants'  bill  was,  that  a  good  title  could  not  be  made  to 
the  land  purchased  by  the  testator,  William  Evans,  from  Barry  and  Stewart,  the 
assignees  of  Yates.  It  is  alleged  therein,  that  at  the  time  of  the  said  sale,  and  before, 
it  was  publicly  stated  by  Yates,  the  acting  auctioneer,  that  the  title  was  unquestionable. 
This  fact  is  not  expressly  denied,  either  by  the  answer  of  Yates,  who  is  made  a 
defendant,  or  of  McMechen,  who  is  principally  interested  in  the  suit ;  although  they 
allege,  that  the  right  of  the  assignee,  and  of  the  mortgagee,  was  all  that  was  sold. 
But  the  equity  of  the  complainants  does  not  rest  on  tliat  fact  alone ;  as  the  question 
of  the  title  is  proper  to  be  considered  without  any  such  express  statement  or  assur- 
ance respecting  it.  Although  it  was  contended  in  the  argument,  that  the  right  only 
being  sold,  the  purchaser  was  bound  to  take  it  at  his  risk.  This  position  cannot  be 
admitted,  except  in  cases  where  the  title  was  expressly  stated,  or  known  to  be 
doubtful,  and  a  reduced  price  was  given  accordingly. 

It  does  not  appear,  from  the  several  answers,  that  there  is  such  a  clear  title  to  the 
land  as  those  who  claim  under  the  purchaser  ought  to  have  before  the  money  is  paid. 
The  legal  title  set  up  being  only  as  to  a  part,  and  the  equitable  one  being  somewhat 
uncertain.  The  defendant  McMechen  states,  that  he  believes  Yates  had  a  good  and 
valid  title  to  the  land  called  Springfield,  and  that  he  bought  the  greater  part  from  the 
Baltimore  Company,  the  deeds  for  which  are  regularly  acknowledged  and  recorded ; 
and  the  equitable  title  to  a  part  derived  from  James  McFadon  is  also  set  forth.  The 
defendant  Yates  refers,  likewise,  to  the  Baltimore  records.    But  it  cannot  be  expected. 


JONES  V.  MAGILL.  I93 

tnade  on  tlie  answer  of  the  cestui  que  trust  alone ;  and  indeed  where 
there  appeared  to  have  been  fraud  and  colkision,  the  cestui  que  trusty 
aUhough  not  a  party  to  the  suit,  was  allowed  to  move  for  a  disso- 
lution of  the  injunction ;(;')  and  the  injunction  may  be  dis- 
solved as  against  some  of  the  defendants  only ;  or  it  may  be 
dissolved  on  the  answer  of  an  insolvent,  who  has  no  interest  in 
the  matter,  upon  his  speaking  to  facts  peculiarly  within  his  own 
knowledge  before  his  insolvency  ;(/>:)  and  so  where  it  appears 
from  the  nature  of  the  case,  that  the  responding  defendant  is  the 
only  one  who  can  speak,  from  his  ov/n  knov.dedge,  in  relation  to 
the  facts  on  which  the  injunction  rests  ;(/)  as  where  the  defendants 
who  have  not  answered  are  infants  ;  and  so  too  where  it  appears, 
that  the  answer  of  a  nonresident  defendant  cannot  be  material  as 
to  the  facts  on  which  the  injunction  is  founded. (??2) 

that  the  injunction  of  this  court  should  be  dissolved  upon  the  strength  of  titles  thus 
set  out,  and  not  answering  the  interrogatories  in  the  bill. 

The  conduct  and  expression  of  Evans,  in  his  lifetime,  are  relied  on  to  prove  his 
assent  to  the  purchase,  after  the  doubts  as  to  the  title  were  known.  But  the  answer 
of  the  assignees  shews  only,  that,  although  he  was  advised  to  the  contrary,  he  was 
determined  to  abide  by  the  contract,  by  paying  for  that  part  to  which  a  good  title 
could  be  given ;  and  that  he  washed  to  receive  a  good  title  for  the  whole.  And  the 
directions  in  his  wull  do  not  prove  his  consent  to  take  the  whole  as  it  stood.  Con- 
sidering that  the  equity,  on  which  the  injunction  was  granted,  still  subsists,  to  wit, 
the  uncertainty  of  obtaining  a  valid  title  after  the  payment  of  the  purchase  money; 
and  its  application  to  the  claim  against  the  land. 

It  is  ordered  that  the  said  injunction  be  continued  till  the  final  hearing,  or  further 
order.  

Without  any  further  proceedings  being  had  in  this  case,  it  appears  to  have  beea 
some  time  afterwards  dismissed  by  the  plaintiffs. 

(j)  Nugent  V.  Smyth,  Mosely,  354. 

(k)  Joseph  p.  Doubleday,  1  Ves.  &  Bea.  497. 

(Z)  Boheme  v.  Porter,  Barn.  Chan.  Rep,  352;  Rowcroft  v.  Donaldson,  1  Fow.  Ex. 
Pra.  286. 

(wj)  Sholbred  v,  Macmaster,  2  Anstr.  366. 

Williams  v.  Hall. — It  appears,  that  a  bill  had  been  filed  previous  to  the  institu- 
tion of  this  suit,  by  James  Williams  and  Solomon  Hillen,  against  Edward  Hall, 
David  Stewart,  and  David  C.  Stewart,  to  obtain  an  injunction,  which  having  been 
filed  and  submitted  to  the  Chancellor,  he  granted  the  injunction,  but  suggested,  that 
the  bill  seemed  to  be  too  indistinct  and  merely  argumentative  in  regard  to  the  plain- 
tiffs not  being  interested  as  partners  with  the  Stewarts.  In  consequence  of  which 
the  plaintifi's  afterwards,  by  their  petition,  stating,  that  no  process  had  been  issued, 
or  served,  prayed  leave  to  withdraw  their  bill  and  exhibits  from  the  files  of  the  court. 
Upon  vvhich,  on  the  6th  of  July,  1S09,  the  leave  was  granted  as  prayed. 

This  bill  was  filed  on  the  15th  of  July,  1S09,  by  the  same  plaintiffs,  against  the 
same  defendants.  From  which  it  appears,  that  the  plaintiffs  were  partners  in  trade, 
which  they  conducted  by  Williams  then  residing  in  the  West  Indies,  and  Hillen  in 
Baltimore  ;  that  Hall  also  then  resided  in  the  West  Indies,  carrj'ing  on  trade  there  as 

25  ^ 


194  JONES  V.  MAGILL. 

In  the  case  under  consideration  the  equity  arises  out  of  the  facts 
as  alleged  in  the  bill,  that  Harding  and  Magill  have  not  only 


a  merchant ;  and  that  the  Stewarts  were  residents  of  Baltimore,  and  partners  in  trade 
under  the  firm  of  David  Stewart  &.  Son  ;  that  this  firm  of  David  Stewart  &,  Son  had 
sent  the  schooner  Holstein  with  a  cargo  on  a  voyage  fo  the  West  Indies,  consigned 
to  Hall,  who  had  sold  that  outward  cargo ;  and,  hy  various  dealings  in  i-elation  to 
that  vessel,  had  made  sundry  advances,  by  which  those  who  owned  her,  and  were 
jointly  concerned  in  her,  had  become  indebted  to  hLm  in  a  very  considerable  sum  ; 
that  the  defendant  Hall  had  instituted  a  suit  against  these  plaintiffs,  with  David 
Stewart  &  Son,  as  the  joint  owners  of  that  vessel,  and  recovered  judgment  against 
them  for  the  sum  of  $13,44S  53  and  costs  ;  which  judgment  had  been  affirmed  by 
the  Court  of  Appeals ;  and  on  execution  being  issued  thereon  the  plaintiffs  had 
superseded  tlie  judgment,  and  given  bond  with  surety  according  to  law ;  that  the 
defendants  David  Stewart  &  Son  had  become  bankrupts,  in  consequence  of  which 
the  whole  liability  and  weight  of  the  judgment  had  fallen  upon  these  plaintiffs  ;  that 
the  plaintiffs  were  in  truth  not  partners  of  David  Stewart  &,  Son,  or  in  any  way  inter- 
ested with  them  in  the  schooner  Holstein ;  which  fact,  although  well  known  to  these 
defendants,  these  plaintiffs  had  been  unable  to  shew  and  establish  on  the  trial  at  law. 
And  for  the  purpose  of  more  perfectly  illustrating  and  explaining  the  whole  transac- 
tion, they  prayed  that  the  defendants  might  be  ordered  to  produce  their  books  of 
accounts,  &,c.  Wherefore  they  prayed  for  an  injunction  to  stay  the  proceedings  at 
law,  for  general  relief,  &,c.  The  plaintiffs,  with  their  bill,  offered  an  injunction 
bond  with  surety  in  the  usual  form,  reciting,  in  the  condition,  the  judgment  of  the 
Court  of  Appeals,  but  taking  no  notice  of  the  supersedeas. 

15th  July,  1819. — Kilty,  Chancellor. — Let  subpcena  and  injunction  issue  in  the 
usual  form  according  to  the  prayer  in  the  original  bill.  On  further  consideration  of 
the  bill  on  which  the  injunction  was  ordered  as  above,  the  Chancellor  thinks  it  proper 
to  state,  that  he  will  hear  a  motion  for  dissolving,  if  made  according  to  the  practice 
of  the  court  in  other  respects,  without  waiting  for  the  answer  of  Stewart  Sc  Son, 
who  may  not  be  interested  in  the  event  of  the  suit,  and  whom  the  other  defendant 
cannot  compel  to  answer.  

On  the  1.5th  of  Februaiy,  1810,  the  defendant  Hall  filed  his  answer,  in  which  the 
facts  and  circumstances  set  forth  in  the  bill  are  fully  answered,  explained  away,  or 
denied  ;  and  upon  the  filing  of  it,  he  caused  to  be  entered  on  the  docket  a  motion  to 
dissolve  the  injunction  ;  and  on  the  same  day,  obtained  the  usual  order  authorizing 
notice  to  be  given  to  shew  cause.  But  soon  after  obtaining  this  order,  on  discover- 
ing that  the  injunction  bond  was,  as  he  conceived,  defective,  he  moved  for  an  imme- 
diate dissolution  of  the  injunction  on  the  ground  of  its  having  been  improvidently 
granted. 

'2Slh  February,  1810. — Kilty,  Chancellor. — In  this  case,  which  stands  on  notice 
of  a  motion  to  dissolve  the  injunction,  it  was  urged  by  the  counsel  for  the  defendant, 
that  independent  of  the  main  question,  the  injunction  ought  to  be  immediately  dis- 
solved on  account  of  the  bond  not  covering  the  judgment  by  supersedeas,  which 
stands  injoined  with  the  first  judgment.  The  practice  has  been,  in  case  of  any 
defect,  or  deficiency  in  the  bond,  to  require  further  security  and  not  to  dissolve  the 
injunction  for  that  cause. 

It  is  therefore,  ordered,  that  unless  an  injunction  bond,  as  required  by  law,  to 
secure  the  payment  of  the  judgment  confessed  as  a  supersedeas  mentioned  in  the  bill, 
and  in  the  injunction,  be  filed  in  the  chancery  office  with  sufficient  sureties  on  or 
before  the  12th  day  of  March  next ;  the  said  injunction  as  far  as  it  relates  to  th« 


JONES  V.  MAGILL.  I95 

fraudulently  concealed  and  disposed  of  property  which  ought  to 
have   been  applied  in  satisfaction  of  the  debt  with   which   the 

supersedeas,  will,  on  application  after  that  day  be  dissolved.  Provided  a  copy  of  this 
order  be  served  on  the  complainant  Williams,  or  his  counsel,  or  either  of  the  super- 
seders  on  the  judgment  so  confessed,  before  the  7th  day  of  March  next. 


In  compliance  with  this  order  the  plaintiffs  filed  another  bond,  in  the  condition  of 
which  the  judgment  confessed  as  a  supersedeas  was  expressly  recited  in  the  usual 
form,  which  bond  they  submitted  for  approbation. 

loth  March,  1810. — Kilty,  Chancdlor. — The  within  bond  is  received  for  the  pre- 
sent. If  any  objection  should  be  made  thereto,  and  ruled  good,  a  further  time  will  be 
fixed  for  the  execution  of  another  bond. 

On  the  7th  of  July,  1810,  the  defendant,  David  Stewart,  put  in  his  separate  answer, 
by  which  he  explained  away  or  denied  most  of  the  principal  facts  and  circumstances 
stated  in  the  bill.  And  on  the  6th  of  August,  1810,  David  C.  Stewart  filed  his 
answer,  in  which  he  refers  to,  adopts,  and  relies  upon  the  answer  of  his  partner  and 
co-defendant,  David  Stewart. 

\2th  September,  1810. — Kilty,  Chancellor. — The  motion  to  dissolve  the  injunction 
in  this  case  came  on  to  be  heard  according  to  notice  at  the  present  term,  and  was 
fully  argued  by  the  counsel  on  each  side. 

In  this  case,  as  in  others  of  a  similar  nature,  whatever  might  be  the  result  on  the 
final  hearing,  it  would  be  proper  to  continue  the  injunction  if  the  answer  was  evasive 
and  not  full ;  if  the  answer  did  not  deny  the  facts  on  which  the  equity  of  the  com- 
plainants rested;  and  also  if  the  books  and  papers,  exhibited  in  compliance  with  the 
prayer  of  the  bill,  shewed,  that  the  facts  were  different  from  what  the  defendant  con- 
ceived and  represented  them  to  be.  But  the  answer  of  the  defendant  Hall  certainly 
contains  a  full  and  complete  denial  of  the  equity  stated  in  the  bill ;  and  the  documents 
called  for  by  the  complainants,  go  more  to  corroborate  than  to  weaken  that  denial ; 
and  Hall's  answer  is  also  sustained  by  those  of  Stewart  St  Son,  filed  since  the  notice 
of  the  motion  to  dissolve. 

Among  the  points,  deducible  from  the  charges  made  in  the  bill,  the  most  important 
is,  that  the  complainants  Hiilen  and  Williams  were  not  interested  with  Stewart  & 
Son  in  the  Holstein.  It  would  make  an  end  of  the  case,  and  was  therefore  most 
strenuously  urged  by  the  complainant's  counsel.  But  it  is  a  remarkable  circum- 
stance, that,  although  the  bill  may  be  said  to  be  argumentative  with  a  view  of  induc- 
ing the  court  to  believe  this  to  be  the  fact,  it  is  not  in  any  part  thereof  expressly 
stated  to  be  so.  And  the  Chancellor  is  more  particularly  induced  to  notice  this  cir- 
cumstance, from  his  recollection  of  having  pointed  it  out  as  one  of  the  objections  to 
the  bill  that  was  first  filed. 

Upon  the  whole  it  is  ordered,  that  the  injunction  heretofore  issued  in  this  case,  be 
and  the  same  is  hereby  dissolved. 

The  plaintiffs,  by  their  petition,  filed  on  the  9th  of  February,  1811,  without  oath 
or  aflidavit  of  any  one,  stated,  that  they  believe,  that  further  answers  and  documents 
which  David  Stewart  could  make  and  produce,  relative  to  the  matters  and  things 
contained  in  the  bill  of  complaint,  would  materially  promote  the  developement 
of  the  facts  alleged  in  it,  and  particularly  the  following  books,  papers  and  docu- 
ments, viz. :  The  ledger  of  the  said  David  Stewart  &.  Son,  from  the  begin- 
ning of  the  year  1799,  till  the  dissolution  of  their  partnership  ;  their  journal,  day 
book,  &c,  &c.    And  therefore  pray,  that  David  Stewart  fit  Son  may  be  ordered  to 


196  JONES  r.  MAGILL. 

plaintiff  is  charged ;  but  that  they  have  done  so,  and  indulged  and 
settled  with  Harding,  who  was  the  principal  debtor,  in  a  manner 

produce  in  court  all  (he  aforesaid  books,  papers  and  documents,  if  in  their  possession 
or  control ;  or  if  not,  that  they  state  particularly  what  has  become  of  them,  and  in 
whose  possession  or  control  they  now  are. 

Wih  Fcbniary,  1811. — Kilty. —  Chancellor. — The  Chancellor  has  considered  the 
within  petition.  Tlie  order  prayed  for  cannot  be  made  witliout  a  compliance  with 
the  requisites  of  the  act  of  179S,  ch.  81. 


After  which  one  of  the  plaintifls,  Williams,  filed  his  affidavit  of  the  truth  of  the  facts 
and  allcg-ations  stated  in  their  petition,  asking  for  the  production  of  books  and  papers. 

loth  February,  1311. — Kilty,  Chancellor. — On  considering  again  the  within  peti- 
tion, together  with  the  afiidavit  now  annexed  thereto :  it  is  required  and  decreed, 
that  David  Stewart  and  David  C.  SteAvart,  defendants  in  the  suit  referred  to,  in  the 
said  petition,  do  forthwith  produce  to  this  court,  the  following  books  and  papers,  viz. : 
The  ledger  of  David  Stewart  &.  Son,  from  the  year  1799,  till  the  dissolution  of  their 
partnership.  See.  &c.  or  that  they  forthwith  produce  to  this  court  copies  of  the  said 
several  books  and  papers  certified  by  a  justice  of  the  peace  ;  if  the  said  books  and 
papers  respectively  are  in  their  possession  or  power.  Provided,  that  inasmuch  as  the 
application  is  made  by  petition,  and  not  by  motion  in  court;  any  motion  or  cause 
shewn  against  this  requisition  and  decree  will  be  heard  at  any  time  during  the  first 
week  of  the  ensuing  February  term. 


A  solicitor  of  the  defendants  having  been  heard  in  shewing  cause  against  making 
this  order  absolute  : 

25//t  March,  1811. — Kilty,  ClianceUor. — During  the  present  term,  cause  wag 
shewn  by  R.  G.  Harper,  counsel  in  this  suit  for  Hall  and  Stewart,  against  the  above 
decree ;  but  on  considering  the  argument  urged  by  him,  the  Chancellor  does  not 
think  the  cause  shewn  to  be  sufficient  against  the  said  decree,  Avhich  therefore 
remains  absolute  except  as  to  the  time  of  producing  the  said  books  and  papers.  Pro- 
vided, that  a  copy  of  this  order  and  of  the  said  decree  be  served  on  the  said  D. 
Stewart  and  D.  C.  Stewart,  or  cither  of  them,  before  the  10th  day  of  April  next. 


On  the  25th  of  Jul}',  1311,  David  Stewart  by  his  petition,  on  oath,  stated,  that  the 
firm  of  David  Stewart  &.  Son  being  embarrassed  in  their  commercial  concerns,  trans- 
ferred all  their  property,  estate  and  effects,  including  their  books,  papers,  letters  and 
accounts  of  every  description,  to  Elias  EUicott,  William  Winchester,  and  John  Mun- 
nykhysin  who  is  since  deceased,  in  trust  for  the  benefit  of  their  creditors  ;  that  David 
Stewart  was  appointed  by  them  their  agent  to  settle  the  affairs  of  the  firm  of  David 
Stewart  Sc  Son,  and  in  that  capacity  he  has  ever  since  held  possession  of  those  books 
and  papers ;  that  Ellicott  the  trustee  objects  to  the  removal  of  them ;  and  therefore 
this  defendant  David  Stewart  submits,  whether  they  are  so  far  in  his  possession  and 
control  as  to  enable  him  to  comply  with  the  requisition. 

25th  July,  181 1. — Kilty,  Chancellor. — The  Chancellor  has  already  passed  such 
orders  on  the  su.bject  mentioned  in  the  within  petition  as  he  thought  proper.  If  the 
books  and  papers  were  in  the  possession  of  any  other  person,  he  would  be  ordered 
to  produce  them.  The  sentiments  expressed  by  Elias  Ellicott,  and  his  unwilling- 
ness to  have  the  books  removed,  can  have  no  cffoct  on  the  court,  and  are  not  proper 
to  be  stated  as  an  excuse  for  not  complying  with  the  order  thereof. 


After  which  tlie  defendant  having  failed  to  produce  all  the  papers  as  ordered : — 


JONES  V.  MAGILL.  197 

very  prejudicial  to  the  testator  of  the  plaintiff,  who  was  only  the 
surety  of  Harding ;  and,  therefore,  that  the  plaintiff  should  be 
discharged.  In  answer  to  this  statement  of  facts,  Magilly  as  to 
some  most  material  particulars,  responds  merely  by  way  of  hearsay 
from  the  defendant  Gitfings  ;  and  the  answer  of  Harding,  looking 
to  the  allegations  of  the  bill,  is  that  of  a  particeps  J'raudis,  and  as 
such  cannot  be  allowed  to  be  of  any  avail  to  Magill,  the  creditor 


2~ih  Sepiember,  ISll. — Kilty,  Chancellor. — On  motion  of  the  petitioners,  it  is 
Ordered,  that  Stewart  &,  Son  produce  and  lodc^e  in  this  court,  such  of  the  papers 
mentioned  in  the  former  order  as  are  not  yet  exhibited,  before  the  first  day  of  No- 
vember next.  

After  which,  the  case  having;  been  brought  on  for  a  final  hearin;^,  it  was,  on  the 
29th  Februar)',  1816,  decreed,  that  the  defendant  Hall  pay  or  refiind  to  the  plaintiffs 
the  sum  of  $7,359  55,  with  interest  from  the  17th  May,  1S08,  and  costs. 

Chapline  v.  Beatty. — This  bill  was  filed  on  the  Gth  of  January,  1S07,  by  Joseph 
Chapline  against  Charles  A.  Beattj*,  Abner  Ritchie,  John  T.  Mason,  and  James 
Williams.  It  states,  that  the  defendants  Beatty  and  Ritchie  had,  as  administrators 
of  Charles  Beattj',  deceased,  obtained  a  judgment  in  an  action  of  debt  against  this 
plaintiff,  for  £351,  with  interest  thereon  from  the  16th  of  February,  1791 ;  and  in 
an  action  on  the  case  they  had  also  obtained  judgment  against  this  plaintiff  for 
the  sum  of  £534  3s.  bd.,  bearing  interest  from  the  4th  of  December,  1801;  which 
judgments  were  rendered  at  the  same  time  upon  an  agreement  between  this  plaintiff 
and  the  defendants  Beatty  and  Ritchie,  that  there  should  be  such  deductions  and 
discounts  from  them  as  could  be  made  to  appear  within  a  limited  time,  to  Walter  S. 
Chandler;  that  this  plaintiff  had  produced  his  vouchers  to  the  arbitrator  Chandler, 
who  postponed  the  consideration  of  the  matter  to  another  time  ;  that  the  defendants 
Beatty  and  Ritchie  then  produced  other  claims  against  this  plaintiff,  not  embraced 
by  the  judgments ;  that  the  arbitrator,  without  notice  to  this  plaintiff,  or  paying  due 
regard  to  his  vouchers,  made  and  returned  an  av.ard  before  the  appointed  time,  by 
which  he  gave  to  this  plaintiff  credit  for  less  than  he  was  entitled  to,  and  applied  the 
payments  to  one  of  the  judgments  only,  leaving  the  other  to  bear  interest  from  the 
longest  time ;  that  afterwards  the  judgment  in  the  action  of  debt  was  entered  for  the 
use  of  John  T.  Mason ;  and  that  in  the  action  on  the  case  for  the  use  of  James 
Williams,  who  had  caused  writs  o£  fieri  facias  to  be  issued  and  levied  on  the  property 
of  this  plaintiff  for  the  whole  amount.  Whereupon  the  plaintiff  prayed  for  general 
relief,  and  for  an  injunction  to  stay  the  further  proceedings  at  law. 

The  plaintiff  gave  two  separate  injunction  bonds,  one  to  the  defendants  Beatty  and 
Ritchie,  for  the  use  of  Mason,  and  the  other  to  Beatty  and  Ritchie,  for  the  use  of 
Williams,  for  the  respective  amounts  of  the  several  judgments. 

9lh  Jamianj,  1807. — Kilty,  Chancellor. — Let  subpcrna  and  injunction,  or  injunc- 
tions issue  as  prayed ;  provided,  that  any  motion  for  dissolving  shall  not  be  delayed 
for  want  of  the  answers  of  the  defendants  Mason  and  Williams. 


On  the  18th  of  May,  1807,  all  the  defendants  put  in  their  answers,  in  which  they 
denied  all  the  material  matters  of  fact  upon  which  the  plaintiff's  equity  was  founded. 
The  answers  of  Beatty,  Ritchie,  and  Mason,  were  sworn  to  before  a  justice  of  the 
peace,  in  the  District  of  Columbia  ;  and  the  clerk  of  Washington  county,  of  that 
District,  certified,  that  he  was  then  and  there  duly  commissioned  as  a  justice  of  thg 


jgg  JONES  V.  MAGILL. 

and  alleged  party  to  the  fraud,  (n)  The  loan  of  the  $500  was  made 
by  the  defendant  Gittings ;  the  note  for  it,  on  which  the  judgment 
at  law  was  obtained,  was  given  to  him  ;  and  it  is  admitted,  that  he, 
as  having  been  privy  to  the  whole  transaction,  is  able  to  speak  of 
the  facts  from  his  own  knowledge ;  and,  therefore,  it  is  important 
that  he  should  answer,  as  well  because  he  is  disinterested,  having 
settled  his  final  account  and  been  discharged  as  guardian,  as  because 
Magill,  who  claims  under  him,  will  be  bound  by  his  answer.(o) 

It  is  true,  that  a  defendant  has  no  direct  means  of  enforcing 
an  answer  to  the  bill  .from  his  co-defendant ;  but,  he  may  urge 
forward  the  plaintiff  to  do  his  duty  in  that  particular ;  and,  certainly, 
at  the  instance  of  a  defendant  anxious  to  have  the  restriction  of 
an  injunction  removed,  the  court  would  suffer  no  unreasonable  delay 
from  the  plaintiff.  A  responding  defendant  may  lay  the  plaintiff 
under  a  rule  further  proceedings,  which  the  court  will  not  hesitate 
to  enforce  so  as  to  compel  him  to  extract  an  answer  from  a  tardy 
co-defendant  with  as  little  delay  as  possible ;  or  else  the  bill  may 
be  dismissed  and  the  injunction  dissolved  ',{p)  for,  in  equity  as  at 

peace.    Upon  these  answers  the  defendants  gave  notice  of  a  motion  to  dissolve;  and 
on  the  7th  July,  1S07,  the  injunction  was  thereupon  dissolved. 
(71)  Bridgman  2\  Green,  2  Yes.  629. 

(0)  Osborn  v.  U.  S.  Bank,  9  Wheat  832 ;  Field  v.  Holland,  6  Cran.  24. 
(p)  Anonymous,  9  Ves.  512  ;  Depcyster  v.  Graves,  2  John.  Ch.  Ca.  148. 
ToNC  r.  Oliver.— This  bill  was  filed  on  the  22d  of  October,  1S03,  by  William 
Tong  against  Richard  Oliver,  and  also  Robert  Berrj'  and  Peter  Snyder,  adminisbators 
of  Benjamin  Abbot.  It  states,  that  the  plaintiff,  in  the  year  1798,  purchased  of  the 
intestate  a  tract  of  land  in  Pennsylvania;  that  he  paid  part  of  the  purchase  money, 
gave  his  bond  for  £300,  being  the  balance,  and  obtained  possession  of  the  land ;  that 
Abbot  gave  an  order  on  this  plaintiff  in  favour  of  the  defendant  Oliver,  for  the  whole 
sum  due  on  the  bond  ;  that  on  presentation  of  the  order,  the  plaintiff  paid  £  200,  and 
executed  his  bond  for  the  remaining  £  100  to,  and  in  the  name  of  the  defendant 
Oliver;  that  the  land  was  subject  to  an  incumbrance  for  £32  at  the  time  of  tlie  sale, 
which  the  plaintiff  would  be  compelled  to  pay  and  satisfy ;  and  yet,  that  suit  had 
been  brought  on  the  bond,  judgment  obtained,  and  an  execution  levied  on  the  plain- 
tiff's lands ;  that  Abbot  is  since  dead,  and  the  defendants  Berry  and  Snyder  were  his 
administrators ;  upon  which  an  injunction  was  prayed  for  and  granted  to  stay  the 
proceedings  at  law. 

On  the  19th  May,  180S,  the  defendants  Berry  and  Snyder  put  in  their  joint  answer ; 
the  pui-port  of  which  is  sufficiently  noticed  in  the  Chancellor's  order.  On  the  same 
day,  the  defendant  Oliver  not  having  answered,  they  obtained  the  usual  order  to  give 
notice  of  a  motion  to  shew  cause  why  the  injunction  should  not  be  dissolved  at  the 
next  term. 

1st  March,  1S09.— Kilty,  Chancellor.— The  motion  for  dissolving  the  injunction 
was  made  by  the  defendants'  counsel,  no  counsel  for  the  complainant  being  in  court. 
But  as,  according  to  the  rule  and  practice  of  the  court,  the  defendants  would 
have  been  entitled  to  a  dissolution,  if  the  answers  were  considered  sufficient,  it  is 


JONES  V.  MAGILL.  jgg 

law,  where  there  are  necessarily  several  defendants,  the  court  will 
not  continue  the  restriction  which  has  been  imposed  upon  one  of 

deemed  proper  to  determine  the  case  as  it  stands,  -without  any  cirgument  by  the 
complainant. 

The  answer  of  Oliver  is  not  filed.  The  Chancellor,  without  giving  a  positive 
opinion,  is  inclined  to  think,  that  unless  it  should  be  shewn,  that  he  had  some  know- 
ledge of  the  transaction,  or  that  his  answer  might  be  material,  it  might  be  dispensed 
with,  as  he  was  only  the  nominal  plaintiif  at  law. 

But  the  answers  of  Berry  and  Snyder  are  not  considered  sufficient.  The  answers 
of  administrators  must  always  be  taken  with  a  view  to  the  reasons  for  their  belief  or 
knowledge  of  facts.  In  this  case  they  state  such  contradictory  circumstances  as  give 
room  to  doubt  their  knowledge  of  them. 

The  bill  states,  that  the  £  300,  for  which  the  plaintiff  gave  his  bond,  was  the  half 
of  the  purchase  money.  The  answer,  without  a  positive  denial  of  that  fact,  speaks 
of  it  as  the  whole  consideration.  The  defendants  allege,  that  the  £200,  received  by 
Oliver  from  Tong,  included  the  £32  lien  on  the  Pennsylvania  tract;  and  they  after- 
wards state,  that  Tong  purchased  the  land  subject  to  that  incumbrance,  and  many 
others  ;  and  the  argumentative  part  of  their  answer,  as  to  the  £300,  has  been  already 
noticed.  They  further  allege,  that  they  believe  the  £32  was  taken  into  consideration 
in  Tong's  bond  to  Abbot ;  and,  that  they  knew  it  was  deducted  in  the  bond  given  to 
Oliver.  So  that,  according  to  their  statement,  this  sum  has  been  twice  allowed; 
although  the  land  was  sold  subject  to  it. 

It  appears  on  the  whole,  that  it  will  be  the  most  equitable  course  to  continue  the 
injunction  till  final  hearing  or  further  order,  with  a  view  to  ascertain  the  real  state 
of  the  transaction  ;  and  it  is  ordered  to  be  continued  accordingly. 


After  which  the  responding  defendants,  with  a  view  to  urge  forward  the  plaintiff 
to  extract  an  answer  from  the  defendant  Oliver,  or  to  bring  the  case  to  a  final  hearing, 
called  on  the  court  to  compel  him  to  proceed. 

29th  December,  1809. — Kilty,  Chancellor. — On  application  of  the  defendants,  rule 
further  proceedings  by  the  fourth  day  of  Februarj'  term,  IS  10  ;  provided  a  copy  of 
this  order  be  served  on  the  complainant,  or  his  counsel,  before  the  first  day  of 
February  next.  

On  the  part  of  the  responding  defendants,  the  case  was  afterwards  again  submitted 
to  the  court  on  notes  by  the  defendants'  solicitor,  in  which  it  was  stated,  that  this 
cause  stands  under  a  rule  further  proceedings,  which  expired  on  the  fourth  day  of 
February  term ;  that  Oliver  had  not  answered,  and  the  responding  defendants  had  no 
means  of  compelling  him  to  answer.  Upon  this  state  of  the  case  the  defendants, 
who  hatl  answered,  prayed  a  dismissal  under  the  rule ;  or  that  the  injunction  be 
dissolved,  upon  such  terms  as  the  Chancellor  may  deem  proper. 

1th  April,  1810. — Kilty,  Chancellor. — On  that  part  of  this  application,  praying 
for  a  dissolution  of  the  injunction  on  the  former  notice,  the  Chancellor  refers  to  his 
order  of  the  1st  of  March,  1809.  On  that  part  praying  for  a  dismissal  on  the  rule,  the 
Chancellor  considers  the  session  of  the  court  is  not  at  present  open  for  such  a  motion. 
And  on  the  application  in  writing  by  the  counsel  for  the  complainant,  it  is  ordered 
that  a  commission  issue  to  the  persons  named  by  him,  unless  commissioners  are 
named  by  the  defendant  so  as  to  be  struck  before  the  first  day  of  May  next.  Provided 
a  copy  of  this  order  be  served  on  the  defendant's  counsel  before  the  20th  inst. 


After  which  a  commission  was  issued,  testimony  taken,  and  the  case  submitted  for 
final  hearing ;  without  the  answer  of  the  defendant  Oliver. 


200  JONES  V.  MAGILL. 

them,  unless  the  plaintiff  shews,  that  he  is  using  all  due  diligence 
to  have  all  the  others  brought  before  the  court.  (9) 

These  defendants,  who  now  ask  for  a  dissolution  of  this  injunc- 
tion, have  not  yet,  by  a  rule  further  proceedings,  required  the 
plaintiff  to  prosecute  her  suit  without  delay ;  and,  consequently, 
they  cannot  justly  complain  of  the  injunction  being  continued  until 
the  filing  of  the  answer  of  the  defendant  Gittings ;  which,  it  is 
evident,  may  bring  into  the  case  an  acknowledgment  of  facts,  that 
may  go  far  to  sustain,  if  not  entirely  to  support  the  equity  upon 
which  the  plaintiff's  injunction  rests.  Hence,  as  there  is  now  no 
ground  to  impute  to  the  plaintiff  any  unreasonable  neglect  in  the 
prosecution  of  her  suit ;  and  the  answer  of  a  defendant,  under 
whom  this  creditor,  Magill,  claims,  who,  it  is  admitted,  can  speak 
from  his  own  knowledge  of  some  of  the  material  facts  charged  in 
the  bill,  has  not  yet  been  put  in ;  the  hearing  of  the  motion  to 
dissolve  cannot  be  taken  up  until  his  answer  has  been  brought  in ; 
or,  until  it  may  be  inferred,  from  the  laches  of  the  plaintiff,  in  not 
endeavouring  to  have  it  brought  in,  that  it  would  contain  nothing 
likely  to  sustain  her  case ;  or  until  such  implied  notice  of  the  bill 
has  been  given  to  the  non-responding  defendant,  if  he  be  not 
resident  within  the  State,  as  will  enable  the  court  to  proceed  without 
his  answer,  (r) 

23d  May,  1810. — Kilty,  Chancellor. — The  commission,  which  was  ordered,  at  the 
present  term,  has  been  returned,  and  the  case  is  submitted  for  final  hearing ;  an 
abstract  being-  made  on  the  part  of  the  defendants. 

Although  the  real  state  of  ttie  transaction  is  not  disco\'cred  very  clearly  from  the 
proceedings ;  yet,  as  it  appears  in  proof,  that  the  complainant  refused  to  produce  the 
agreement,  thereby  adding  weight  to  the  testimony  of  Peter  Snyder  respecting  it, 
it  is  not  considered  necessary  to  continue  the  injunction  in  force.  Whereupon  it  is 
Decreed,  that  the  injunction  be  dissolved,  and  the  bill  dismissed,  but  without  costs. 

(9)  Gow.Part.  179. 

(r)  Paul  v.  Nixon.— This  bill  was  filed  on  the  25th  of  August,  1796,  by  John 
Paul  against  John  Nixon,  Benjamin  Fuller,  John  Donaldson,  and  David  H.  Cunning- 
ham, surviving  executors  of  William  West.  The  bill  states,  that  the  plaintiff  had, 
on  the  23d  of  December,  1777,  given  his  bond  to  the  defendants'  testator,  with  a 
condition  for  the  payment  of  the  sum  of  four  hundred  pounds,  which  he  signed 
without  reflection  as  to  the  interest  reserved;  that  to  correct  the  mistalce  in  this 
respect,  the  defendants'  testator,  soon  afterwards,  signed  and  delivered  to  the  plaintiff 
a  written  agreement,  whereby  he,  the  obligee,  agreed  that  he  would  demand  no  more 
than  three  per  cent,  per  annum  until  the  debt  was  paid ;  that  this  agreement  the 
plaintiff  had  lost;  that  the  defendants  had  brought  suit  and  obtained  judgment  for 
the  whole  amount,  with  legal  interest,  without  giving  him  credit  for  certain  payments, 
•which  he  had  made ;  and  without  having  the  sum  really  due  adjusted,  according 
to  the  terms  upon  which  the  judgment  was  given,  which  were,  that  the  amount 
of  interest  accruing  on  the  bond  should  be  ascertained  by  William  McLaughlin. 


JONES  V.  MAGILL.  201 

Whereupon  it  Is  ordered,  that  the  injunction  heretofore  granted 
in  this  case  be  and  the  same  is  hereby  continued  until  the  comino" 

Whereupon,  the  plaintiff  prayed  for  an  injunction  to  stay  the  proceedings  at  law, 
&c.,  which  was  granted  as  prayed. 

The  defendants  put  in  their  answer,  in  which  they  admit,  that  they  had  obtained  a 
judgment  as  stated ;  and  as  to  the  agreement,  they  aver  that  they  have  no  knowledge 
of  it ;  but  they  say,  that  they  verily  believe,  that  there  never  was  any  such  instru- 
ment of  writing  made  by  their  testator.  In  regard  to  the  payments  alleged  to  have 
been  made  by  the  plaintiff,  the  answer  is  entirely  silent. 

Upon  these  circumstances  the  case  was  submitted  on  the  notes  of  the  solicitors  of 
the  parties. 

7th  January,  1800. — Hanso%-,  Chancellor. — This  cause  is  before  the  Chancellor 
on  a  motion  to  dissolve  made  on  filing  the  answer.  The  bill,  answers,  exhibits, 
arguments  of  counsel  in  writing,  and  all  other  proceedings,  have  been  by  him  read 
and  considered. 

By  the  written  argument  of  the  defendants'  counsel,  the  Chancellor  is  informed, 
that  they  submit  the  cause  for  final  decision  on  the  bill  and  answer,  but  there  is  no 
submission  on  the  complainant's  part ;  and  it  is  only  the  motion  to  dissolve,  which 
was  made  as  aforesaid  by  the  defendants'  counsel  on  putting  in  Lheir  answer,  that  the 
Chancellor  can  decide  on  at  present  without  the  complainant's  consent. 

In  fact  the  principles  and  practice  of  this  court  seem,  on  this  occasion,  not  to  ha\e 
been  recollected.  It  is  therefore  proper  to  say  something  relative  to  the  said  princi- 
ples and  practice. 

When  a  bill  is  filed  stating,  on  oath,  just  grounds  to  be  relieved  from  a  jud"-ment 
at  law,  the  complainant,  on  filing  likewise  a  bond  with  sureties  approved  by  the 
Chancellor,  for  securing  to  the  defendants  the  money  recovered  7iisi,  &.c.  obtains  an 
order  for  an  injunction,  which  is  to  continue  until  further  order.  If  the  defendant, 
by  his  answer  on  oath,  denies  those  matters,  on  which  the  injunction  was  obtained, 
on  motion  to  the  Chancellor  he  generally  obtains  an  order  dissolving  the  injunction. 
The  complainant,  however,  if  he  thinks  proper,  may  proceed,  after  the  dissolution, 
to  establish,  by  proof,  the  allegations  of  his  bill ;  and  if  he  succeeds,  either  the 
injunction  is  renewed,  or  other  relief  is  granted  by  the  final  decree,  as  is  proper  for 
the  circumstances  of  the  case. 

Every  complainant,  on  the  filing  of  the  answer  by  the  defendant,  is  entitled  to 
have  tiie  cause  set  down  for  final  hearing  on  the  bill  and  answer.  And  for  this  plain 
reason  :  by  so  doing  he  admits  every  thing  contained  in  tlie  answer  to  be  true,  and 
that  nothing  contained  in  his  bill  is  tnae  except  what  is  admitted  by  the  answer.  So 
that  it  is  impossible  for  the  defendant  to  be  injured  by  a  submission  on  bill  and 
answer.  But,  if  a  defendant  were  entitled  to  have  the  cause  set  down  on  bill  and 
answer,  it  is  plain,  that  he  could  thereby  preclude  the  complainant  fi-om  the  oppor- 
tunity of  establishing  his  bill  by  inditl'erent  testimony,  and  would  in  short  have  tlie 
cause  only  in  his  own  power.  For,  it  cannot  be  unknown,  that  on  final  hearing, 
nothing  alleged  in  the  bill  is  to  be  considered  as  established  unless  admitted  by  the 
answer,  or  proved  by  indifferent  testimony.  If  indeed  the  defendant  were  entitled 
to  have  the  cause  set  down  for  final  hearing,  on  bill  and  answer,  it  must  be  on  terms 
similar  to  those  of  the  complainant's  setting  down;  viz.  that  everything  contained 
in  the  bill  is  ti-ue,  that  is  to  say,  the  rule  must  be  reversed.  But  there  is  no  such 
practice,  nor  does  it  by  any  means,  in  the  present  case,  appear  to  be  the  meaning 
of  the  defendants  to  admit  the  complainant's  allegations.  On  the  contrarj-,  they 
have  denied,  so  far  as  they  can  deny,  the  said  allegations. 

There  never  has  been  a  case  in  this  court,  where  the  defendant  had  less  reason 


202  JONES  V.  MAGILL. 

in  of  the  answer  of  the  defendant  Jolm  F.  GdttingSj  and  untfl 
further  order. 


The  defendant  Magill,  by  his  petition,  referring  to  the  previous 
proceedings,  stated,  that  the  defendant  Gittings,  for  a  long  time 
previous  to  the  fiUng  of  the  bill,  and  then  did  reside  out  of  the 
limits  of  this  State :  which,  as  he  believes,  was  known  to  the 
plaintiff  when  she  instituted  this  suit;  and  yet,  she  had  not  stated 
the  fact  in  her  bill  and  prayed  for  an  order  of  publication,  in  place 
of  a  subpcena  against  him ;  whereupon  the  petitioner  prayed,  that 
the  plaintiff  might  be  compelled  to  proceed  against  the  defendant 
Gittings  without  delay,  &c. 

than  the  present  defendants  have,  to  expect  success  on  a  motion  to  dissolve,  made  on 
filing  the  answer,  witliout  any  submission  on  the  part  of  the  complainant  for  a  final 
decision.  Had  the  complainant  made  such  a  submission,  it  would  have  amounted  to 
a  total  abandonment  of  his  application  for  relief,  because  in  case  of  such  submission, 
as  has  already  been  said,  eveiy  part  of  the  answer  would  be  considered  as  admitted ; 
and  no  part  of  the  bill,  except  what  is  admitted  by  answer,  would  be  of  any  avail. 
Of  comse  the  decree  would  be  for  immediate  dissolution  and  dismission  of  the 
bill. 

The  injunction  was  granted  on  two  grounds.  The  bill  alleged,  1st,  an  agreement 
in  writing  of  the  deceased  to  take  only  three  per  cent,  interest,  instead  of  six,  for 
■which  judgment  is  entered  :  2d,  the  payment  of  a  sum  for  which  no  credit  is  given. 
The  answer  does  not  expressly  d^iy  the  agreement ;  although  the  defendants  say 
they  do  not  believe  that  it  ever  existed.  As  to  the  payment,  which  is  the  most  sub- 
stantial ground,  the  answer  says  not  a  syllable.  How  then  is  it  possible,  on  the  pre- 
sent motion,  to  expect  an  order  for  dissolution. 

The  Chancellor  has  taken  the  trouble  of  giving  a  full  explanation ;  because  it  is 
his  custom,  aim,  and  wish,  to  have  the  principle's  and  practice  of  this  court  under- 
stood, and  particularly  where  some  of  the  parties  are  not  residents  of  this  State. 

As  the  counsel  complains  of  delay,  and  mentions  the  anxiety  of  his  clients  to  obtain 
an  early  termination  of  tliis  cause,  the  Chancellor  must  aver,  that  little  delay  has 
proceeded  from  this  court.  He  will  go  further,  as  he  conceives  he  may  do  with  pro- 
priety, and  suggest  what  is  proper  to  be  done  for  expediting  the  cause.  The  defend- 
ants may  obtain  a  rule  for  further  proceedings,  &c.  This  wiU  either  oblige  the 
complainant  soon  to  take  out  a  commission,  or  will  soon  put  him  out  of  court.  And 
if  a  commission  be  t;iken  out,  a  little  diligence  and  vigilance  on  the  part  of  the 
defendants  will  obtain  an  early  return  of  the  commission ;  or  put  it  in  their  power 
to  shew,  that  delay  is  sought  by  the  complainant. 

Now  in  cases  of  injunction,  obtained  on  filing  the  bill,  the  Chancellor  has  always 
thought  it  his  duty  to  discourage,  a.s  much  as  he  could,  consistently  with  a  fair 
administration  of  justice,  all  studied  or  needless  delay  on  the  part  of  the  com- 
plainant. 

It  is  ordered,  that  tlic  injunction  in  this  cause  heretofore  issued,  shall  continue 
until  final  hearinjr  or  further  order. 


After  which,  on  the  17th  of  December,  1803,  by  direction  of  the  plaintiff,  the 
injunction  was  dissolved,  and  the  bill  dismissed  with  costs. 


MARGARET  HALL'S  CASE.  203 

Ibth  J\})vemher,  1825. — Bland,  Chancellor. — If  the  plaintiff 
fails  to  proceed  against  the  defendant  JoJm  F.  GittingSj  for  the 
purpose  of  compelling  him  to  appear  and  answer,  or  of  having  the 
bill,  as  against  him,  taken  pro  confesso,  or  to  cause  publication  to 
be  made  against  him,  as  an  absent  defendant,  on  or  before  the  tenth 
day  of  the  next  term,  then  the  other  defendants  may  again  move, 
according  to  the  usual  course,  to  have  the  injunction  dissolved. 


After  which  the  plaintiff,  with  the  leave  of  the  court,  so  amended 
her  bill  as  to  state,  that  the  defendant  Gittings  was  a  nonresident ; 
and,  on  the  1st  of  February,  1826,  obtained  an  order  of  publication 
against  him  in  the  usual  form.  On  the  27th  September,  1826,  the 
defendant  Gittings  filed  his  answer,  after  which  the  motion  to 
dissolve  was  renewed. 

3d  March,  1827. — Blaxd,  Chancellor. — This  case  having  been 
submitted  on  the  motion  to  dissolve  the  injunction,  and  all  the 
defendants  having  now  so  answered,  as  completely  to  remove 
every  ground  of  equity  set  forth  in  the  bill,  it  is  Ordered,  that  the 
injunction  heretofore  granted  be  and  the  same  is  hereby  annulled 
and  dissolved. 


MARGARET  HALLS  CASE. 

A  w-idow,  who  elects  to  take  the  estate  devised  to  her,  in  lien  of  dower,  is  to  be 
deemed  a  purchaser  for  a  fair  consideration  to  the  value  of  her  dower,  and  must 
have  her  claim  sustained  as  a  lien,  to  that  extent,  in  preference  to  creditors. 

This  case  arose  upon  a  creditor's  bill,  filed  on  the  5th  of  October, 

1825,  by  George  Mackubin  and  Margaret  Hall,  the  widow  and 
executrix  of  Joseph  Hall,  deceased,  against  his  devisees,  Samuel 
Mattheios,  and  others  ;  alleging,  that  his  personal  property  was 
insufficient  to  pay  his  debts,  and  praying,  that  his  real  estate  might 
be  sold  for  that  purpose.  A  decree  was  passed  on  the  30th  of  June, 

1826,  for  the  sale  of  the  realty  accordingly ;  and  the  trustee  reported, 
that  he  had  made  sale  of  a  part  of  it,  which  was  finally  ratified  on 
the  1st  of  March,  1827. 

On  the  first  of  March,  1827,  the  plaintiff,  Margaret,  by  her 
petition  stated,  that  her  late  husband  had,  by  his  last  will,  devised 
to  her  a  large  portion  of  his  estate,  to  hold  a  part  during  her  life, 


204  MARGARET  HALL'S  CASE. 

and  another  part  for  a  term  of  years  ;  that  she  had  elected  to  take 
under  the  will  of  her  husband,  huraediately  after  his  death,  when 
she  was  unacquainted  with  his  affairs ;  but  that  it  is  now  ascer- 
tained, that  the  claims  against  his  estate  will  absorb  so  much  of  it, 
as,  if  paid  to  her  exclusion,  will  deprive  her  of  all  benefit  intended 
by  the  will ;  and  leave  her  in  a  much  worse  situation  than  if  she 
had  rested  altogether  upon  her  common  law  rights.  And,  there- 
fore, as  her  election  was  improvidently  made,  and  at  a  time  when 
she  was  destitute  of  the  information  which  alone  could  enable  her 
to  act  knowingly  upon  the  subject,  she  prays  that  it  may  be  annulled, 
that  she  may  be  allowed  the  value  of  her  dower,  or  be  relieved 
according  to  the  nature  of  her  case,  &c. 

bth  March,  1827. — Bland,  Chancellor. — This  case  having  been 
submitted  on  the  application  and  petition  of  Margaret  Hall,  the 
proceedings  were  read  and  considered. 

The  will  of  the  deceased  husband  of  this  widow  lay  before  her, 
and  presented  to  her  a  choice  between  the  estate  therein  bestowed, 
and  that  given  by  the  law.  In  her  election  to  take  under  the  will, 
there  is  no  apparent  room  even  to  suspect  fraud,  nor  has  the  exist- 
ence of  any  been  intimated  ;  and  it  is  difficult  to  perceive  how  there 
could  have  been  any  mistake.  But,  supposing  it  possible  to  show 
that  a  mistake  had  occurred,  I  should  require  from  her  a  strong  and 
clear  case  of  misapprehension.  She  has  heretofore  formally  made 
her  election  in  the  manner  prescribed  by  law,  and  has  solemnly 
reaffirmed  that  choice  by  bringing  this  suit.  An  election  thus 
■  deliberately  made,  repeated  and  adhered  to,  ought  not  to  be  lightly 
shaken  or  easily  annulled.  This  widow, must,  therefore,  be  held 
firmly  bound  by  her  election ;  and  can  have  no  relief,  but  such  as 
maybe  altogether  compatible  with  the  choice  she  has  thus  made,(a) 

A  devise,  which  is  merely  of  the  nature  of  a  donation,  or  that 
appoints  persons  to  take  as  heirs  in  place  of  those  designated  by 
the  law,  must  certainly  be  considered  as  void  against  creditors. 
But  a  devise  in  lieu  of  dower,  is  one  of  a  different  character,  and 
of  much  higher  merits.  It  discharges  a  highly  favoured  debt  due 
from  the  testator ;  it  relieves  his  real  estate  from  a  lien  imposed  by 
the  law  in  favour  of  his  wife,  in  preference  to  all  others,  with  which 
he  himself  could  have  encumbered  it,  by  any  contract  of  his  own. 
In  the  language  of  the  act  of  Assembly,  a  widow  electing  to  take 


(a)  Butricke  v.  Broadhurst,  1  Ves.  jun.  171 ;  S.  C.  3  Bro.  C.  C.  83 ;  Wake  u.Wake, 
1  Ves.  jun.  333. 


MARGARET  HALL'S  CASE.  205 

under  the  will  of  her  husband,  is  to  "  be  considered  as  a  purchaser 
with  a  fair  consideration. "(&)  It  is  clear,  therefore,  that  this  devise 
is  fraudulent,  as  against  creditors,  only  so  far  as  it  exceeds  the  value 
of  the  dower,  in  lieu  and  discharge  of  which,  it  was  given,  and  has 
been  accepted. 

The  creditors  have  associated  themselves  with  the  widow  and 
devisee  of  the  deceased,  and  have  asked  to  have  the  real  estate 
sold  for  the  payment  and  satisfaction  of  all.  But  these  creditors 
now,  it  seems,  propose  to  have  their  claims  first  satisfied,  in  pre- 
ference, and  exclusion  of  the  devise  to  the  widow.  They  who 
are  the  widow's  opponents,  would  thus  bind  her  to  her  election  to 
take  under  the  will,  which  satisfied  her  claim  that  had  a  preference 
over  theirs  ;  and  yet  they  would  leave  her  to  take,  by  that  devise, 
nothing,  or  less  than  the  amount  of  her  legal  claim.  This  cannot 
be  allowed.  They  who  ask  equity  must  do  equity.  These  creditors 
must  either  permit  the  widow  ta  take  to  the  whole  amount  under 
the  will,  as  is  her  choice,  or  allow  her  to  obtain  full  satisfaction  for 
her  dower ;  because  to  the  value  of  that,  at  the  least,  she  is  both 
at  law  and  in  equity,  "  a  purchaser  with  a  fair  consideration  ;"  and 
to  that  extent,  therefore,  the  devise  must  be  sustained.  The  widow 
is  clearly  entitled  to  one,  or  the  other  ;  either  the  devise,  or  the 
dower ;  and  since  her  taking  the  whole  of  the  subject  devised, 
which  was  and  is  her  choice,  has  been  objected  to,  she  must  be 
allowed  to  take,  as  devisee,  to  the  full  value  of  the  dower  which 
she  has  relinquished,  but  no  more.(c) 

Therefore  it  is  Ordered,  that  the  said  Margaret  Hall  be,  and  she 
is  hereby  allowed  one-seventh  part  of  the  proceeds  of  the  real  estate 
in  the  proceedings  mentioned,  in  bar  and  satisfaction  of  all  that 
portion  of  the  real  and  personal  estate  devised  to  her  by  her  late 
husband,  Joseph  Hall,  and  which  property  so  devised  she  had 
elected  to  take  in  lieu  of  her  dower. 


(b)  179S,  ch.  lOL  subch.  13,  s.  5;  Suj.  V.  &.  P.  257.— (c)  Burridge  r.  Bradyl, 
1  P.  Will.  127  ;  Blower  r.  Morret,  2  Ves.  420  ;  Davenhill  i-.  Fletcher,  Amb.  244 ; 
Heath  v.  Denby,  1  Russ.  543. 


206  HANNAH  K.  CHASE'S  CASE, 


HANNAH  K.  CHASES  CASE. 

Where  a  matter,  -which  is  properly  the  subject  of  a  petition,  is  brought  before  the 

court  in  that  form,  the  new  facts  tlierein  set  ibrth,  which  are  not  denied  by  a  written 

answer  on  oath,  must  be  taken  to  be  true. 
The  appointment  of  a  receiver  does  not  involve  a  determination  of  any  right ;  but 

it  can  only  be  made  at  the  instance  of  a  party  who  has  an  acknowledged  interest, 

or  a  strong  presumptive  title  in  himself  alone,  or  in  common  with  others ;  and 

where  the  property  itself,  or  its  rents  and  profits  are  in  danger  of  being  materially 

injured  or  totally  lost. 
If  a  defendant  demurs  and  pleads  to  the  same  matter,  his  plea  overrules  his  demurrer ; 

and  so  if  he  pleads  and  answers  to  the  same  matter,  his  answer  overrules  his  plea. 
To  make  a  decree  a  good  bar  in  a  subsequent  suit,  it  must  be  shown,  that  the  matter 

of  the  bill  was  res  judicata ;  that  there  was  an  absolute  determination  by  the  court 

that  the  party  had  no  title. 
A  solicitor  is  not  permitted  to  reveal  the  confidential  communications  made  to  him  by 

his  client,  either  before  or  after  the  termination  of  the  suit ;  but,  as  it  is  the  privilege 

of  the  client,  he  may  waive  it,  and  thus  make  the  solicitor  a  competent  witness. 
An  absolute  sale  to  the  husband,  with  a  condition  for  a  re-purchase,  not  being  a 

mortgage,  vests  in  him  an  estate  in  fee  simple,  of  which  his  wife  is  dowable. 
The  acknowledgment  of  the  wife,  in  the  form  prescribed  by  the  act  of  Assembly  of 

a  lease  for  years  made  by  her  husband,  can  only  operate  as  a  bar  of  her  dower 

during,  and  to  the  extent  of  the  lease. 
In  equity  the  widow  may  have  an  account  of  the  rents  and  profits  of  her  dower  from 

the  time  her  title  accrued. 
Where  the  property  is  incapable  of  division,  dower  may  be  assigned  in  the  form  of  a 

rent,  distrainable  of  common  right. 

This  bill  was  filed  on  the  22d  of  November,  1821,  by  Hannah  K. 
Chase,  as  the  widow  of  the  late  Samuel  Chase,  against  Samuel  CJiasey 
and  others,  his  heirs,  and  some  others,  to  recover  dower  in  a  house 
and  lot  in  the  city  of  Baltimore,  called  the  Fountain  Inn.  To  which 
bill  all  the  defendants  answered,  and  testimony  was  taken.  The 
heirs  alleged,  that  the  late  Samuel  Chase  had  not  such  a  legal 
interest  in  the  property  in  question  as  to  entitle  the  plaintiff  to 
dower ;  and  that  even  if  she  ever  had  been  entitled  to  dower,  she 
had  relinquished  her  claim,  as  was  shown  by  the  records  and  the 
agreement  by  which  former  suits,  in  relation  to  this  same  claim, 
had  been  brought  to  a  close.  The  letter  of  the  solicitors  of  this 
plaintiff,  dated  28th  of  September,  1816,  and  addressed  to  her,  in 
relation  to  the  bringing  of  those  then  pending  suits  to  a  close,  is 
in  these  words  : 

"  Dear  Madam — 

"  Understanding  that  an  amicable  adjustment  of  your  suits  in 
chancery  with  the  legal  representatives  of  the  late  Judge  Chase, 
was  likely  to  take  place,  conformably  to  your  request,  we  have 


HANNAH  K.  CHASE'S  CASE.  207 

turned  our  attention  to  the  points  in  controversy  involved  in  those 
suits,  and  particularly  to  the  property  known  and  distinguished  by 
the  name  of  the  Fountain  Inn,  in  which  we  are  of  opinion,  you 
have  no  title  of  dower  during  Bryden's  lease,  having  relinquished 
your  dower  therein  during  said  lease,  which  will  expire  in  1821. 
Whether,  upon  the  termination  of  said  lease,  you  will  be  entitled 
to  dower,  is  a  question  of  some  difficulty^  and  perhaps  can  only  be 
solved  by  some  further  proof  in  point  of  fact,  relative  to  the  nature 
and  effect  of  the  contract  between  the  late  Judge  Chase  and  Bryden. 
If  it  depended  entirely  upon  the  title  papers,  we  should  be  of 
opinion,  that  dower  in  that  property  would  be  clearly  demandable. 
But  papers  have  been  exhibited  with  the  answer  of  Mr.  T.  Chase, 
which  create  a  difficulty  in  determining  whether  the  original  contract 
with  Bryden  was  in  the  nature  of  a  mortgage,  or  an  absolute 
purchase.  If  the  first,  dower  is  not  claimable ;  if  the  latter,  you 
are  entitled  to  it  as  a  matter  of  course.  It  was  certainly  not 
designed  to  have  the  effect  of  a  mortgage  by  the  late  Judge  Chase. 
We  do  not  think,  that  the  difficulty  should  prevent  a  settlement  as 
to  the  residue  of  the  property,  in  which  dower  is  asserted,  in  relation 
to  which,  we  have  reason  to  believe,  no  opposition  wiU  be  made  to 
your  claims.  If  before  the  lapse  of  five  years,  the  question  as  to 
Bryden'' s  property  should  not  be  settled,  the  question  between  you 
wiU  be  narrovred  down  to  a  single  point,  in  the  adjustment  of  which, 
we  suppose,  no  great  difficulty  can  take  place.  We  are,  &.c.  JoAn 
Stephen,  A.  C.  Magruder.^'' 

The  agreement,  upon  which  the  suits  spoken  of  in  the  afore- 
going letter,  were  brought  to  a  close,  was  marked  in  this  suit  as 
exhibit  S.  M.,  and  is  expressed  in  these  words  : 

^'■Hannah  K.  Chase  and  John  P.  Paca  v.  Samuel  Chase  and 
others  ;  Hannah  K.  Chase  v.  Samuel  Chase  and  others ;  and  The 
same  v.  The  same  : 

"  It  is  agreed,  that  a  decree  shall  pass  in  the  first  of  the  above 
cases,  for  the  payment  of  the  sums  of  money,  with  interest  thereon, 
secured  to  be  paid  to  the  complainant  Hannah  K.  Chase,  by  the 
two  bonds  in.  the  proceedings  mentioned  and  exhibited,  executed 
by  the  Honourable  Samuel  Chase,  deceased ;  one  to  John  P.  Paca, 
of  Queen  Ann's  county,  as  trustee  of  the  said  Hannah  K.  Chase, 
dated  on  the  14th  day  of  February,  A.  D.  1809,  for  the  payment 
of  two  thousand  five  hundred  dollars ;  the  other  to  the  said  John 
P.  Paca,  as  trustee  aforesaid,  dated  on  the  tenth  day  of  July, 
A.  D.  1810,  for  the  payment  of  one  thousand  four  hundred  and 


208  HANNAH  K.  CHASE'S  CASE. 

thirty-seven  dollars,  together  with  costs  of  suit.  It  is  also  further 
agreed,  that  in  the  two  last  of  the  above  causes,  decrees  shall  pass, 
giving  the  complainant  dower  in  the  following  tracts,  pieces  or 
parcels  of  land,  to  wit,  one  lot  on  Jones'  Falls ;  one  lot  called  the 
Garden,  and  one  other  lot  adjoining  the  same,  (the  said  three  lots 
or  parcels  of  land  being  the  same  now  advertised  to  be  sold  on  the 
7th  of  Auo-ust  next,  by  the  trustees  for  the  sale  of  the  real  estate 
of  Samuel  Chase,  deceased;)  also  in  a  lot  of  ground  situated  on 
the  west  side  of  Jones'  Falls,  conveyed  by  the  said  Samuel  Chase, 
deceased,  to  William  Camp,  sometime  in  the  month  of  April,  A.  D. 
1811 ;  also  in  two  lots  between  Water  and  Pratt  streets,  in  the  city 
of  Baltimore,  conveyed  by  the  said  Samuel  Chase,  deceased,  to  a 
certain  John  Gross,  and  by  the  said  Gross  afterwards  conveyed  to 
Jlndrew  Myer ;  also  in  a  certain  lot  or  parcel  of  ground,  advertised 
by  the  said  trustees  as  aforesaid,  situate  on  Whetstone  Point : 
provided  it  shall  appear  to  the  satisfaction  of  the  Chancellor,  by 
the  exhibition  of  title  papers,  or  otherwise  as  he  may  order,  that 
the  said  Hannah  K.  Chase  hath  a  right  to  dower  in  the  same. 
And  it  is  further  agreed,  that  a  compensation  in  money  shall  be 
paid  to  the  complainant  by  the  defendants,  for  and  in  lieu  of  her 
dower  in  the  property  above  mentioned ;  and  that  such  compen- 
sation shall  be  fixed  by  the  Chancellor,  upon  evidence  offered  to 
him  of  the  value  of  the  said  respective  pieces  or  parcels  of  land 
by  the  actual  sales,  where  sales  are  to  be  made  by  the  trustees  as 
aforesaid ;  and  for  want  of  sales  by  depositions,  showing  such  value, 
to  be  taken  before  some  justice  of  the  peace  for  Baltimore  county, 
residing  in  the  city  of  Baltimore,  by  either  party,  upon  giving  three 
days'  notice.  And  it  is  further  agreed,  that  the  said  bills  be  dis- 
missed as  to  all  the  property  in  the  proceedings  mentioned,  not 
specified  and  included  in  this  agreement,  and  that  the  complainant 
pay  the  costs.  It  is  agreed,  that  all  sums  for  which  Mrs.  Chase  may 
be  indebted  to  the  estate  of  Samuel  Chase,  deceased,  for  furniture, 
&c.  obtained  from  the  administrator,  or  at  the  appraised  value,  shall 
be  deducted  from  her  claim ;  the  amount  whereof  shall  be  ascertained 
by  Luther  Martin  and  Jonathan  Meredith.''''  This  agreement  w^as 
signed  by  H.  K.  Chase,  T.  Chase,  S.  Chase,  and  their  solicitors. 

Several  deeds  were  exhibited,  proved  and  relied  on  by  the  par- 
ties, to  show  the  nature  of  the  title  of  the  plaintiff's  late  husband 
to  the  property,  in  which  she  now  claimed  dower.  The  deed 
dated  on  the  4th  of  February,  1806,  and  on  the  same  day  ac- 
knowledged and  delivered  from  James  Clarke  to  Samuel  Chase,  the 


HANNAH  K.  CHASE'S  CASE.  209 

late  husband  of  the  plaintiff,  recites  and  sets  out  his  title  in  the 
following  words  : 

"  Whereas  Harry  Dorsey  Goughj  on  the  fifth  day  of  April,  in 
the  year  seventeen  hundred  and  eighty-six,  agreed  with  Daniel 
Grant  of  Baltimore  town,  now  the  said  city,  to  sell  and  give  his 
bond  to  convey  to  him,  his  heirs  and  assigns,  clear  of  all  incum- 
brances, all  that  lot  or  parcel  of  ground  lying  in  Baltimore  town 
and  contained  within  the  following  courses  and  distances,  to  wit : 
begining,  &c.  &c.  with  its  appurtenances,  for  the  consideration  of 
three  thousand  seven  hundred  and  eighty  pounds  in  English  guineas 
at  thirty-five  shillings  each,  and  weighing  five  pennyweights  and 
six  grains,  payable  on  the  fifth  day  of  April  seventeen  hundred 
and  ninety-three,  with  annual  interest  thereon  until  paid.  And 
whereas  the  said  Harry  Dorsey  Gough,  afterwards,  to  wit,  on  the 
twenty-ninth  day  of  September,  in  the  year  seventeen  hundred  and 
ninety-five,  agreed  with  the  said  Daniel  Grant,  to  sell  and  give  his 
bond  to  convey  to  him,  his  heirs  and  assigns,  clear  of  all  incum- 
brances, all  that  other  lot  or  parcel  of  ground  lying  in  Baltimore 
town  aforesaid,  now  the  said  city,  and  situate  immediately  below 
the  buildings  of  the  said  Daniel  Grant, 'to  wit :  beginning,  &c.  &c., 
for  the  consideration  of  five  hundred  and  twenty-one  pounds  in 
English  guineas,  at  tliirty-five  shillings  each,  and  weighing  five 
pennyweights  and  six  grains,  payable  in  one  year,  with  annual 
interest  thereon  until  paid.  And  whereas  the  said  Daniel  Grant, 
afterwards,  to  wit,  on  the  thirtieth  day  of  September,  in  the  year 
seventeen  hundred  and  ninety-five,  sold  the  said  two  lots  or  parcels 
of  ground  wnth  the  appurtenances  unto  James  Bryden  of  the  said 
city  of  Baltimore,  for  the  consideration  of  the  sum  of  three  thou- 
sand four  hundred  and  sixty-four  pounds,  six  shillings  and  five 
pence,  current  money,  to  be  paid  by  him  to  the  said  Harry  Dorsey 
Gough,  and  of  the  sum  of  five  thousand  and  thirty-five  pounds, 
thirteen  shillings  and  seven  pence  of  like  money,  to  be  paid  by 
him  the  said  James  Bryden,  unto  him  the  said  Daniel  Grant.  And 
whereas  the  said  James  Clarice,  with  John  Smith,  became  security 
for  the  said  James  Bryden,  for  the  payment  of  the  said  two  seve- 
ral sums  of  money ;  and  the  said  Daniel  Grant  for  their  indemni- 
fication, on  the  said  day  and  year  last  mentioned,  assigned  to  them, 
the  said  James  Clarke  and  John  Smith,  tdl  his  right,  title  and  inter- 
est of,  in  and  to  the  said  two  bonds  of  the  said  Harry  Dorsey 
Gough,  for  the  conveyance  of  the  said  two  lots  or  parcels  of  ground 
in  the  said  two  bonds  mentioned.     And  whereas  the  said  Javnes 


210  HANNAH  K.  CHASE'S  CASE. 

Bryden  afterwards  paid  unto  the  said  Daniel  Grant,  the  said  money 
with  the  interest  due  thereon  :  and  whereas  the  said  James  Clarke, 
at  the  request  of  the  same  James  Bryden,  hath  paid  unto  the  said 
Harry  Dorsey  Gough,  the  sum  of  seven  thousand  two  hundred  and 
sixteen  dollars  and  forty-two  cents,  money  of  the  United  States, 
being  the  balance  due  unto  him  for  principal  and  interest ;  and 
thereupon  the  said  James  Bryden  delivered  up  unto  the  said  Harry 
Dorsey  Goug/i,  his  said  two  bonds  for  conveyance  as  aforesaid,  and 
the  said  Harry  Dorsey  Gough  at  the  request  of  the  said  James 
Bryden,  did  on  the  third  day  of  February,  in  the  year  one  thousand 
eight  hundred  and  six,  convey  and  make  over  the  said  two  several 
lots  or  parcels  of  ground  with  the  appurtenances,  unto  the  said 
James  Clarke,  his  heirs  and  assigns,  for  ever,  as  by  his  deed  to  the 
said  James  Clarke,  duly  executed  and  acknowledged,  reference 
being  thereunto  had,  will  fully  appear.  And  whereas  the  said 
Samuel  Chase  on  the  day  of  the  date  of  this  deed,  at  the  request 
of  the  said  James  Bryden,  hath  paid  to  the  said  James  Clarke  the 
sum  of  seven  thousand  two  hundred  and  sixteen  dollars  and  forty- 
two  cents,  being  the  sum  paid  by  him  for  the  said  James  Bryden  to 
the  said  Harry  Dorsey  Gough  as.abovementioned.  And  whereas 
the  said  Samuel  Chase,  on  the  date  of  this  deed,  hath  also  paid  to 
the  said  James  Bryden  the  sum  of  ten  thousand  two  hundred  and 
eighty-three  dollars  and  fifty-eight  cents,  the  receipt  whereof  is 
testified  by  his  being  one  of  the  subscribing  witnesses  to  the  exe- 
cution of  this  deed.  Now  this  indenture  witnesseth,  that  the  said 
James  Clarke,''^  &c.  conveying  to  Samuel  Chase  an  absolute  estate 
in  fee  simple. 

The  lease  from  the  late  Samuel  Chase  to  James  Bryden,  bears 
date  on  the  26th  day  of  February,  1806,  of  this  property  for  the 
term  of  fifteen  years,  reserving  an  annual  rent  of  two  thousand  dol- 
lars, is  in  the  usual  form,  and  the  acknowledgment  of  it  by  Chase 
and  his  wife,  the  present  plaintiff,  is  in  the  form  required  by  law. 
The  recital  and  condition  of  the  bond  in  the  penalty  of  forty  thou- 
sand dollars,  of  the  same  date,  from  Samuel  Chase,  the  plaintiff's 
late  husband,  to  James  Bryden,  is  expressed  in  these  words  : 

"  Whereas  it  has  been  agreed,  on  the  day  and  year  abovemen- 
tioned,  by  and  between  the  said  Samuel  Chase  and  the  said 
James  Bryden  as  follows,  to  wit:  that  the  said  Samuel  Chase,  his 
heirs  and  assigns,  at  and  upon  the  expiration  of  fifteen  years  from 
the  day  of  the  date  hereof,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  six,  and  not  before,  and  at  any  time  within  one 


HANNAH  K.  CHASE'S  CASE.  221 

year  from  the  expiration  of  the  said  fifteen  years,  and  not  after- 
wards, and  upon  the  payment  to  him,  the  said  Samuel  Chase,  his 
heirs  or  assigns,  by  the  said  James  Bryden,  his  heirs,  executors, 
administrators  or  assigns,  of  the  sum  of  seventeen  thousand  five 
hundred  dollars,  in  specie  money  of  the  United  States,  or  gold  coins 
as  established  by  act  of  Congress,  passed  on  the  ninth  day  of  Feb- 
ruary one  thousand  seven  hundred  and  ninety-three,  and  not  in 
paper  of  any  kind ;  although  the  said  James  Bryden  or  his  assigns 
should  by  law  be  authorized  to  pay  paper  money  in  lieu  of  specie ; 
and  in  case  of  the  said  James  Bryden  or  his  assigns  not  paying  the 
said  sum  of  seventeen  thousand  five  hundred  dollars  in  manner 
as  aforesaid  at  the  expiration  of  the  said  fifteen  years,  but  within 
the  one  year  thereafter  abovementioned,  then  upon  the  payment  of 
the  said  principal  sum,  with  legal  interest  thereon  until  payment 
within  the  said  year,  in  manner  and  form  aforesaid,  shall  and  will 
well  and  truly  convey  by  deed  duly  acknowledged  and  recorded 
according  to  law,  unto  the  said  Jam,es  Bryden  and  his  heirs,  all  that 
lot  or  parcel  of  ground  lying  in  Baltimore  town,  now  the  said  city 
of  Baltimore,  and  contained  within  the  following  courses  and  dis- 
tances, to  wit :  beginning  for  the  same,  &c.  &c.  together  with  all 
buildings  and  improvements  erected  upon  the  said  two  lots  or  par- 
cels of  ground,  and  which  are  particularly  described  in  a  deed  duly 
acknowledged  and  recorded,  and  bearing  date  on  the  fourth  day 
of  February  last,  for  the  conveyance  of  the  said  two  lots  or  parcels 
of  ground  hy  James  Clarke  to  the  said  Samuel  Chase,  and  in  a  deed 
bearing  date  on  the  day  of  the  date  hereof,  for  the  lease  of  the 
said  two  lots  or  parcels  of  ground  by  the  said  Samuel  Chase  to  the 
said  James  Bryden,  for  the  term  of  fifteen  years  from  the  date  of 
the  said  lease,  and  free  from  all  incumbrances  and  right  and  title 
of  dower  whatsoever.  Now  the  condition  of  the  said  obligation  is 
such,  that  if  the  said  Samuel  Chase,  his  heirs  or  assigns,  shall  well 
and  faithfully  observe,  perform  and  keep  the  said  agreement  on  his 
part,  according  to  the  true  intent  and  meaning  thereof,  then  the 
said  obligation  shall  be  void,  otherwise  in  full  force  and  virtue  in 
law." 

All  the  other  material  circumstances  of  the  case  are  sufficiently 
noticed  by  the  Chancellor  in  delivering  his  opinion  after  the  final 
hearing. 

On  the  first  of  March,  1826,  the  plaintiff  filed  her  petition,  in 
which  she  stated,  that  the  defendant,  Samuel  Chase,  who  had  the 
control  and  management  of  the  property  in  which  she  claimed 


212  HANNAH  K.  CHASE'S  CASE. 

dower,  had,  since  the  institution  of  this  suit,  taken  the  benefit  of 
the  insolvent  law ;  and  that  if  he  were  permitted  to  continue  either 
directly  or  indirectly  to  receive  the  rents  and  profits,  they  would  be 
wholly  lost.  Upon  which  she  prayed  that  a  receiver  might  be 
appointed.  Upon  this  petition  an  order  was  passed,  allowing  the 
defendants  to  show  cause  on  the  22d  of  the  same  month.  After 
which  the  matter  was  brought  up  for  a  final  decision  upon  the  cir- 
cumstances as  stated  by  the  court. 

2Q)th  Jlpril,  1S2G. — Bland,  Chancellor. — The  petition  for  the 
appointment  of  a  receiver  standing  ready  for  hearing,  the  parties- 
were  heard  by  counsel,  and  the  proceedings  read  and  considered. 

The  defendants  have  not  thought  proper  to  put  in  a  formal 
answer  in  writing  to  the  plaintiff's  petition,  but  have  been  content 
with  showing  cause  verbally.  If  a  petition  of  this  kind,  bringing 
before  the  court  a  matter  which  could  not  have  been  made  the  sub- 
ject of  a  mere  motion,  because  of  the  necessity  of  putting  upon 
the  record  the  new  facts  therein  set  forth,  and  apprising  the  party 
of  all  the  circumstances  on  which  the  application  is  made,  so  as  to 
enable  him  to  controvert  them,  if  he  can ;  be  not  regularly  and 
properly  denied  by  a  written  answer  on  oath,  the  whole,  or  so 
much  of  it  as  is  not  denied  must,  by  analogy  to  the  course  of  this 
court  in  similar  cases,  be  taken  to  be  true. (a) 

I  have  so  recently  had  occasion  to  consider  the  general  nature 
and  utility  of  the  power  of  this  court  to  appoint  a  receiver,(6)  that 
it  will  be  unnecessary  upon  this  application  to  notice  what  has 
been  said  in  argument  as  to  the  novelty,  or  the  unsettled  nature 
of  the  authority  of  this-  court  to  make  such  an  appointment,  or 
as  to  the  very  oppressive  purposes  to  which,  it  is  said,  it  may  be 
applied.  It  will  be  sufficient  here  again  to  observe,  that  I  consider 
the  matter  as  having  been  long  since  fully  settled,  and  the  power 
as  one  of  as  great  utility  as  any  which  belongs  to  the  court. 

It  has  been  mainly  urged,  that  the  court  will  not  appoint  a 
receiver  against  the  legal  title,  but  upon  very  special  and  strong 
ground.  This  is  admitted.  But  the  matter  in  controversy  between 
these  parties  is  a  legal  title,  or  it  is  nothing.  This  is  a  bill  for 
dower,  a  mere  legal  deinand  ;  and  the  relief  the  plaintiff  seeks  is  to 
have  her  particular  estate  set  apart  out  of  the  general  estate  of  the 
defendants,  and  to  have  the  rents  and  profits  thereof  accounted  for. 

(a)  Shipbrookc  v.  Hinchingbrook,  13  Yes.  393 ;  2  Harr.  Pra.  Chan.  40,  129,  133. 
{b)  Williamson  v.  Wilson,  24th  April,  1S26,  post  000. 


HANNAH  K.  CHASE'S  CASE.  213 

To  this  it  is  objected,  that  a  receiver  cannot  be  appointed,  because 
the  claim  of  the  plaintiff  does  not  extend  to  the  whole,  but  only  to 
one-third  of  the  property  in  controversy. 

The  appointment  of  a  receiver  does  not  involve  the  deter- 
mination of  any  right ;  or  affect  the  title  of  either  party  in  any 
manner  whatever :  but  still  an  application  for  such  an  appointment 
can  only  be  made  by  those  who  have  an  acknowledged  interest ; 
or  where  there  is  strong  reason  to  believe,  that  the  party  asking  for 
a  receiver  will  recover.  I  am  of  opinion,  that  the  plaintiff  has  a 
sufficient  presumption  of  title,  to  rest  this  application  upon.(c) 
But  unless  she  has  also  shown,  that  the  rents  and  profits  are  in 
imminent  danger,  a  receiver  cannot  be  appointed.  A  manifest 
abuse  of  a  trust  by  an  habitual  and  prospective  course  of  dealing, 
bringing  the  property  into  danger,  has  been  held  to  afford  sufficient 
ground  for  the  appointment  of  a  receiver :  but  in  no  case  has  there 
been  the  least  hesitation  in  making  such  an  appointment,  where  the 
party  in  the  actual  receipt  of  the  rents  and  profits  was  shown  to  be 
insolvent.  Here  the  property  is  in  the  hands  and  under  the  control 
of  the  defendant  Samuel  Chase  :  and  it  is  shown  by  the  exhibits 
attached  to  the  petition,  that  he  has,  pending  this  suit,  actually 
obtained  the  benefit  of  the  insolvent  laws.  He  is,  therefore, 
legally  and  in  fact  insolvent.  Hence,  it  clearly  appears  that  the 
rents  and  profits  of  the  property  in  question  are  exposed  to  immi- 
nent danger,  or  indeed  to  inevitable  loss. 

A  receiver  is  appointed  for  the  benefit  of  the  interested  party 
who  makes  the  application,  and  for  any  others  who  may  choose  to 
avail  themselves  of  it,  and  who  may  have  an  interest  in  the  pro- 
perty proposed  to  be  put  into  the  hands  of  a  receiver.  The 
immediate  moving  cause  of  the  appointment  is  the  preservation  of 
the  subject  of  litigation,  or  the  rents  and  profits  of  it,  from  waste, 
loss  or  destruction  ;  so  that  there  may  be  some  harvest,  some  fruits 
to  gather  after  the  labours  of  the  controversy  are  over.  The  ulte- 
rior objects  of  the  appointment  are  those  contemplated  by  the  suit 
itself;  they  are  the  several  kinds  of  relief,  which  may  be  asked 
for  and  obtained  by  the  complainant's  biO.  Where  the  plaintiff 
claims  the  whole,  as  a  purchaser  or  by  a  superior  title,  if  he  suc- 
ceeds, it  eventuates  that  the  appointment  was  entirely  and  exclu- 
sively for  his  benefit,  (d) 


(c)  Stitwell  V.  WiUiams,  6  Mad.  49  ;  Clark  r.  Dew,  1  Rus.  &  Myl.  103;  Davis  ». 
Marlborough,  2  Swan.  146.— (rf)  Lloyd  v.  Passingham,  16  Ves.  59 ;  Davis  v.  Marl- 
borough, 2  Swan.  125. 


214  HANNAH  K.  CHASE'S  CASE. 

But  SO  far  from  such  iDeing  the  only  kind  of  cases  in  which  a 
receiver  has  been  appointed,  they  are  in  fact  of  the  most  rare 
occurrence.  Where  the  plaintiff  was  a  mortgagee,  or  a  creditor 
suing  in  his  own  right  alone,  or  for  himself  and  other  creditors, 
whose  claims  might  or  might  not  cover  the  whole  amount  ;(e)  or 
where  the  object  of  the  bill  was  to  obtain  a  fair  division  of  the 
property  and  to  have  debts  paid;(/)  or  where  the  portions  to 
which  the  contending  parties  would  be  respectively  entitled  was 
uncertain  until  a  division  should  be  made  by  the  court ;  or  where 
one  tenant  in  common  took  the  whole  rents  and  profits  to  the 
exclusion  of  his  co-tenant ;  if  the  merits  of  the  case  required  it,  a 
receiver  has  been  appointed  and  directed  to  take  charge  of  the 
whole  estate.  And  at  the  instance  of  a  plaintiff  who  claimed  as 
a  purchaser,  such  an  appointment  has  been  made,  even  before 
answer,  although  it  was  urged  in  argument,  that  a  married 
woman,  who  claimed  a  life  estate  under  a  post  nuptial  settlement, 
would  be  stripped  by  it  of  "  her  only  means  of  defence  and  sub- 
sistence, "(o-)  It  does  not  appear  from  any  of  the  cases,  that  such 
an  objection  as  this  now  relied  upon,  has  ever  before  been  made 
by  any  one  in  relation  to  the  appointment  of  a  receiver;  and, 
consequently,  it  cannot  be  regarded  as  of  any  weight  whatever. 
I  shall,  therefore,  put  a  receiver  upon  this  estate.  But  as  no  per- 
son has  been  nominated  by  the  parties  for  that  ofhce,  I  must 
let  the  selection  of  a  suitable  person  lay  over  until  I  hear  from 
them. 

Ordered,  that  a  fit  and  proper  person  be  appointed  as  a  receiver, 
as  prayed  by  the  complainant's  petition,  with  full  power  and  autho- 
rity to  enter  upon  and  take  possession  of  the  messuage,  and 
tenement  in  the  bill  of  complaint  mentioned ;  and  to  take  care  of, 
rent,  or  otherwise  dispose  of  the  same  pending  this  suit,  in  such 
manner  as  he  may  deem  most  advantageous  to  the  parties  inter- 
ested therein,  subject  to  the  further  order  of  this  court.  And  also 
wnth  full  power  and  authority  to  demand,  -sue  for  and  recover  any 
rent  now  due  or  which  may  hereafter  become  due  for  the  same. 
And  for  the  faithful  performance  of  the  trust  reposed  in  such  per- 
son to  be  appointed  to  act  under  this  order,  or  which  may  be 
reposed  in  him  by  any  future  order  of  this  court  in  the  premises, 

(e)  Thomas  v.  Dawkins,  3  Bro.  C.  C.  508 ;  Bowersbank  v.  Collasseau,  3  Ves.  165; 
Wilkins  v.  Williams,  3  Ves.  588 ;  Hughes  v.  Williams,  6  Ves.  459  ;  Bryan  v.  Cor- 
mick,  1  Cox.  422;  DalmeriJ.Dashwood,  2  Cox.37S.— (/)  Skipv.  Hanvood,  3  Atk.  564. 
(g)  Metcalfe  v.  Pulvertoft,  1  Ves.  St  Bea.  180. 


HANNAH  K.  CHASE'S  CASE.  215 

he  shall  give  bond  to  the  State  of  Maryland  in  the  penalty  of  ten 
thousand  dollars,  with  surety  or  sureties  to  be  approved  by  the 
Chancellor.  The  compensation  of  such  receiver  shall  be  here- 
after determined  on  a  consideration  of  his  trouble,  skill,  and 
diligence  in  the  premises.  And  it  is  further  ordered,  that  on  the 
fifth  day  of  May  next,  a  proper  and  suitable  person  wiU  be  appointed 
a  receiver  under  this  order ;  provided,  that  on  or  before  that  day 
the  parties  may  nominate  and  recommend  for  the  appointment  to 
the  Chancellor,  such  person  or  persons  as  they  or  either  of  them 
may  think  proper. 


Two  of  the  defendants,  Matilda  Ridgely  and  Ann  Chase,  on  the 
4th  of  May  1826,  filed  their  petition,  objecting  to  the  appointment 
of  a  receiver,  which  petition  was  then  submitted  to  the  Chan- 
cellor :  but  a  decision  upon  it  was  postponed  until  a  nomina- 
tion of  a  receiver  should  be  made.  After  which,  on  the  10th 
IVIay  1826,  a  nomination  was  made,  and  the  case  was  again  sub- 
mitted to  the  Chancellor. 

9tk  June,  1826. — Blais'd,  Chancellor. — Ordered,  that  the  peti- 
tion of  Matilda  Ridgely  and  Ann  Chase,  be  dismissed  with  costs ; 
and  that  Peter  H.  Cruse,  of  the  city  of  Baltimore,  be  and  he  is 
hereby  appointed  a  receiver  under  and  according  to  the  order  of 
the  26th  of  April  last. 


After  a  receiver  had  been  thus  appointed  and  he  had  taken  the 
property  under  his  care,  the  case  was  prepared  and  brought  on  for 
a  final  hearing. 

28^A  April,  1827. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing,  the  solicitors  of  both  parties  were  fully  heard, 
and  the  proceedings  read  and  considered. 

It  appears  from  the  bill  as  amended,  and  the  plaintiflf's  exhibits, 
that  the  late  Samuel  Chase,  after  and  during  his  marriage  with  the 
plaintiff,  became  seized  in  fee  simple  of  a  certain  real  estate, 
situated  within  the  city  of  Baltimore,  called  the  Fountain  Inn ; 
which  property,  on  the  26th  day  of  February,  1806,  he  leased  to 
James  Bryden  for  the  term  of  fifteen  years,  reserving  an  annual 
rent  of  2000  dollars.  The  plaintiff,  on  a  pri^-y  examination,  ac- 
knowledged the  validity  of  this  lease,  and  made  a  relinquishment 
of  her  dower  in  the  usual  form.  Samuel  Chase,  the  husband  of 
the  plaintiff,  died  on  the  19th  April,  1811.  The  lease  to  Bryden 
expired  on  the  26th  February,  1821.     Those  who  claimed  under 


216  HANNAH  K.  CHASE'S  CASE. 

the  late  Samuel  Cliase  leased  this  property  to  Basil  Williamson, 
who  had  the  possession  thereof  when  this  bill  was  filed.  The 
jjlaintiff  claims  one-third  of  this  property  as  her  dower ;  and  she 
also  claims  a  remuneration  for  the  rents  and  profits  of  her  third 
part  from  the  death  of  her  husband;  and  thereupon  prays,  that 
dower  may  be  assigned  to  her ;  that  the  property  may  be  sold  for 
the  payment  of  the  rents  and  profits  due  to  her ;  or  that  the  future 
accruing  rents  to  which  the  defendants  are  entitled,  may  be 
sequestered  or  placed  in  the  hands  of  a  receiver  to  be  paid 
over  to  her  until  she  is  satisfied ;  and  generally,  that  she  may  have 
such  relief  as  is  suited  to  the  nature  of  her  case. 

The  defendants  Barney  and  wife,  and  Cole  and  wife,  submit  the 
case  to  the  justice  of  the  court.  The  defendant  Williamson 
declares,  that  he  is  totally  ignorant  of  the  plaintiff's  pretensions ; 
and,  therefore,  leaves  her  to  sustain  them  ;  but  admits,  that  he  holds 
as  tenant'  under  some  of  the  other  defendants.  The  defendant 
Richard  M.  Chase  disclaims  all  interest  in  the  matter  in  contro- 
versy. And  Hester-Ann,  Matilda,  and  Frances  T.  Chase,  the 
three  infant  children  of  the  late  Thomas  Chase,  who  have  been 
made  defendants  as  heirs  of  their  father,  who  was  a  defendant  and 
died  after  he  had  answered,  state  their  ignorance  of  the  whole 
affair,  and  pray  to  have  their  interests  protected.  But,  their  father 
does  not  seem  to  have  had  any  interest  in  this  property,  which 
could  have  been  affected  by  the  plaintiff's  claim ;  or  if  he  had, 
it  will  be  fully  considered  and  disposed  of  in  passing  upon  the 
defence  which  he  jointly  made,  before  his  death,  with  three 
others  of  his  co-defendants.  Consequently,  all  these  defendants 
may  be  safely  passed  by  without  any  further  notice,  and  the 
case  may  be  at  once  disencumbered  of  every  thing  in  relation  to 
them. 

The  defendants  Samuel  Chase,  Matilda  Ridgely,  and  Ann 
Chase,  have  put  in  a  joint  and  several  plea  and  answer.  They 
alone  claim  the  property,  called  the  Fountain  Inn.  They  contest 
the  plaintiff's  claim  altogether  and  in  every  shape.  The  whole 
opposition  and  the  entire  brunt  of  the  controversy  rest  with  them. 
They  have  couched  their  defence  in  the  form  of  a  plea  and  answer. 
The  matter  of  their  plea  is  extended  over  a  wide  surface  in  the 
foreground ;  and  sets  out  all  that  mass  of  particulars  of  which 
their  defence  is  composed.  The  matter  of  this  plea  amounts  to 
this,  that  the  plaintiff  filed  a  bill  against  them  on  the  5th  of  July 
1813,  and  another  on  the  14th  of  February  1814,  in  both  of  which 


HANNAH  E.  CHASE'S  CASE.  217 

she  claimed  dower  in  this  same  property ;  that  the  matter  of  those 
suits  was  finally  settled,  and  thus  they  were  dismissed  ;  and  there- 
fore, they  plead  those  suits,  the  agreement,  and  the  dismissal  of 
them  in  bar  of  the  claim  nov>^  made  by  the  plaintiff. 

But  these  defendants,  not  content  with  resting  their  case  upon 
the  matter  thus  set  out  by  way  of  plea,  have  gone  on  to  repeat  the 
whole  of  the  same  matter,  and  to  rely  upon  it  by  way  of  answer. 
The  bill  always  calls  for  an  answer  from  the  defendant  as  to  all  the 
matters  of  fact  therein  set  forth.  But  one  of  the  peculiar  and 
proper  offices  of  a  plea  is  to  present  such  a  defence  as  shews,  that 
the  defendant  cannot  be  compelled  to  make,  or  may  well  be  excused 
from  making  such  an  answer  as  the  bill  calls  for ;  and  therefore, 
upon  the  ground  of  inconsistency,  the  defendant  cannot  be  per- 
mitted, by  way  of  plea,  to  aver,  that  he  ought  not  to  be  compelled 
to  answer,  as  called  upon  in  relation  to  any  particular  matter,  and 
at  the  same  time  to  put  his  defence,  as  to  the  same  matter,  into 
the  form  of  such  an  answer  as  the  bill  calls  for.  Hence  if  a 
defendant  answers  to  any  thing  as  to  which  he  has  pleaded,  he 
thereby  overrules  his  plea  ;  for  his  plea  is  only  why  he  should  not 
answer,  so  that  if  he  answers  he  waives  his  plea  to  the  same  mat- 
ter. The  same  principle  is  equally  applicable  to  demurring  and 
answering,  and  to  demurring  and  pleading  to  the  same  part.  (A) 
The  plea  of  these  defendants  must,  therefore,  be  totally  rejected; 
as  being  overruled  by  the  subsequent  answer,  covering  exactly  the 
same  matter ;  and  I  have  the  less  hesitation  in  thus  striking  it  out, 
because  it  is  evident,  from  the  answer,  that  nothing  at  all  neces- 
sary to  the  sound  merits  of  the  defence  will  be  lost. 

But  in  the  answer  itself,  of  these  defendants,  there  are  matters 
which  may  be  safely  banished  from  it  without  in  the  least  enfee- 
bling the  force  of  the  defence.  That  which  is  related  of  the  matter 
of  the  bill,  filed  on  the  17th  of  February,  1813,  by  this  plaintiff  and 
John  P.  Paca  ;  what  is  said  about  the  letter,  and  the  conveyances 
from  John  E.  Howard  to  the  late  Samuel  Chase ;  what  is  related 
of  the  late  Samuel  Chase''s  intentions  to  make  advancements  of 
property  to  his  children  ;  and  the  allegations  respecting  the  rough 
draft  of  his  will,  with  some  other  particulars  of  less  note,  cannot 
certainly  be  at  all  material  to  the  defence.  I  shall,  therefore,  lay 
them  aside,  as  in  no  way  necessary  to  the  present  matter  in  con- 
troversy. 


(A)  Gilb.  For.  Rom.  58 ;  Mitf.  Tr.  320 ;  Beams'  PI.  Equ.  39. 
28 


218  HANNAH  K.  CHASE'S  CASE. 

The  defence  rests  on  the  following  grounds  -.—first,  that  the 
plaintiff  has  heretofore  sued  for  dower  in  this  property,  and  by  the 
final  termination  of  those  suits  her  claim,  if  she  ever  had  any,  has 
been  fully  released  or  barred ;  secondly ,  that  if  she  has  not  been 
tlius  solemnly  barred,  yet  she  is  not  in  law  dowable  of  this  pro- 
perty, because  her  late  husband  never  had  a  fee  simple  estate 
therein,  but  held  only  a  mere  equitable  interest,  as  a  mortgagee  to 
secure  the  payment  of  money  lent  by  him ;  thirdly,  supposing 
these  objections  removed,  that  still  her  claim  can  be  carried  no 
further  back  than  to  the  26th  of  February,  1821,  when  the  lease  to 
Bryden  and  her  relinquishment  of  dower  up  to  that  period  expired ; 
and  lastly,  supposing  her  claim  to  be  valid,  that  yet  the  two-thirds 
of  this  property,  belonging  to  these  defendants,  can  neither  be  sold 
nor  sequestered  as  a  means  of  satisfying  the  amount  of  the  rents 
and  profits,  v/hich  may  be  decreed  to  her.  These  are  the  gi-eat 
points  of  defence.  The  nature  and  validity  of  each  of  which  must 
now  be  carefully  considered  and  determined. 

With  regard  to  the  first  point.  The  defendants  Samuel,  Matilda, 
and  Ann  claim  this  property,  called  the  Fountain  Inn,  and  allege, 
that  the  plaintiff  has  released,  or  is  barred  of  dower  therein,  by  the 
agreement,  and  the  manner  in  w^hich  two  suits,  heretofore  insti- 
tuted in  this  court,  to  recover  dower  in  the  same  property,  have 
been  finally  adjusted  and  determined.  If  this  allegation  be  well 
founded,  there  is  an  end  of  the  case ;  since  it  cannot  be  necessary 
to  inquire,  wdiether  the  plaintiff  had  been  previously  thereto  dowable 
of  this  property ;  and  much  less  to  determine  the  extent  to  which 
she  might  have  been  entitled  to  recover. 

This  plaintiff,  with  John  P.  Paca,  her  trustee,  filed  a  bill  on  the 
17th  of  February,  1813,  in  this  court,  against  the  representatives 
of  the  late  Samuel  Chase,  to  recover  a  certain  amount  of  money 
alleged  to  be  due  to  her.  After  which  she  filed  one  bill  on  the  5th 
of  July,  1813,  and  another  on  the  14th  of  February,  1814,  in 
%vhich  she  presented  herself  as  the  widow  of  the  late  Samuel 
Chase,  claiming  dower  in  every  parcel  (the  Fountain  Inn,  among 
the  rest)  of  the  real  estate  of  which  her  late  husband  had  been 
seized  during  their  marriage,  against  his  heirs,  and  all  others, 
whom  she  had  found  in  possession  of  any  part  thereof.  To  these 
suits  the  defendants  appeared  and  answered ;  when  the  parties 
came  to  an  agreement,  designated  in  this  case  as  the  exhibit  S.  M., 
by  which  the  matters  in  dispute  in  all  three  of  them  were  to  be 
adjusted  or  withdrawn.     This  written  agreement  is  without  date  ; 


HANNAH  K.  CHASE'S  CASE.  219 

but  the  letter  of  Stephen  and  Magruder,  dated  on  the  28th  of  Sep- 
tember, 1816,  speaks  of  propositions  for  compromising  these  suits 
as  then  depending.  And  the  Chancellor  remarks,  at  the  foot  of  his 
decree  in  the  first  cause,  dated  the  17rh  of  July  1817,  that  "  it  is 
passed  as  being  considered  within  the  meaning  of  the  agreement 
signed  by  the  parties."  Consequently,  this  agreement  S.  M.  must 
have  been  executed  some  time  between  those  dates. 

By  the  agreement  S.  M.,  a  decree  was  to  be  passed  in  the  first 
case  in  favour  of  the  plaintiff  for  the  amount  demanded,  with  costs ; 
■which  was  done  accordingly  on  the  17th  of  July,  1817.  As  to  the 
second  and  third,  or  the  dower  cases,  as  they  may  be  called,  the 
instrument  of  writing  declares,  that  "  It  is  also  further  agreed,  that 
in  the  two  last  of  the  above  causes,  decrees  shall  pass  giving  the 
complainant  dower  in  the  following  tracts,  pieces  or  parcels  of  land, 
to  wit," — going  on  to  specify  certain  property,  without  the  least 
allusion  to  the  Fountain  Inn ;  and  then  proceeds  in  these  words  : 
"  Provided,  it  shall  appear  to  the  satisfaction  of  the  Chancellor,  by 
t-he  exhibition  of  title  papers  or  otherwise,  as  he  may  order,  that 
the  said  Hannah  K.  Chase  hath  a  right  to  dower  in  the  same.  And 
it  is  further  agreed,  that  a  compensation  in  money  shall  be  paid  to 
the  complainant  by  the  defendants,  for  and  in  lieu  of  her  dower  in 
the  property  abovementioned,  and  that  such  compensation  shall  be 
fixed  by  the  Chancellor,  upon  evidence  offered  to  him  of  the  value 
of  the  said  respective  pieces  or  parcels  of  land,  by  the  actual  sales, 
where  sales  are  to  be  made  by  the  trustees  as  aforesaid,  and  for 
want  of  sales,  by  depositions  shewing  such  value;  to  be  taken 
before  some  justice  of  the  peace  for  Baltimore  county,  residing  in 
the  city  of  Baltimore,  by  either  party,  upon  giving  three  days' notice. 
And  it  is  further  agreed,  that  the  said  bills  be  dismissed  as  to  all 
the  property  in  the  proceedings  mentioned,  not  specified  and 
included  in  this  agreement.  And  that  the  complainant  pay  the 
costs." 

The  motives,  which  induced  the  parties  to  enter  into  this  agree- 
ment, are  not  expressed  in  the  instrument  itself;  nor  can  they  be 
clearly  inferred  from  any  thing  that  is  said  in  it.  The  first  suit, 
instituted  by  Hannah  K.  Chase  and  John  P.  Paca,  seems  to  have 
no  sort  of  connexion  with  the  subsequent  dower  cases.  According 
to  the  agreement,  the  plaintiffs,  in  that  case,  were  to  have  a  decree 
for  all  they  asked ;  and  then  it  proceeds  to  speak  of  the  dower 
cases,  wnthout  making  any  allusion  whatever  to  that  case.  There- 
fore, while  confining  our  contemplation  to  the  agreement  alone. 


220  HANNAH  K.  CHASE'S  CASE. 

the  first  case,  and  every  thing  relative  to  it,  may  be  wholly  laid 
aside. 

Looking  at  this  agreement,  in  relation  to  the  dower  cases  alone, 
it  seems  to  be  wholly  gratuitous,  without  any  valuable  consideration 
whatever  moving  from  either  party.  The  plaintiff  was  to  recover 
nothing  to  which  she  could  not  produce  a  clear  subsisting  title.  She 
was  to  be  endowed  of  certain  specified  ]^ropertj^ provided  she  satisfied 
the  court,  that  she  was  entitled  to  dow^r  therein.  It  is  neither  said 
nor  insinuated,  that  she  w^as  to  be  endowed  of  any  one  parcel  of 
land,  in  consideration  of  her  relinquishing  dower  in  any  other 
parcel.  In  short,  she  was  to  be  endowed  of  no  land  in  which  she 
was  not  legally  entitled  to  dowser ;  and  to  no  greater  amount  than 
its  exact  value,  to  be  determined  by  the  court.  The  plaintiff  agreed 
to  dismiss  her  bills  claiming  dower,  as  to  all  the  property  not  included 
in  the  agreement,  and  to  pay  all  costs.  This  concluding  branch  of 
the  agreement  is  perfectly  in  character  with  every  other  part  of  it. 
Like  the  rest,  it  is  merely  gratuitous  ;  and,  consequently,  according 
to  every  principle  of  equity,  it  cannot  be  construed  into  a  release 
of  any  right,  beyond  the  express  and  irrisistible  sense  of  the  terms 
used. 

The  words  of  the  agreement  are,  that  "  the  bills  be  dismissed.''^ 
Suppose  this  agreement  had  been  followed  out  by  a  formal  decree, 
then  the  court  must  have  dealt  with  the  matter  in  the  manner  in 
which  it  was  submitted  ;  that  is,  it  must  have  determined  upon  the 
rights  of  the  parties  as  to  all  the  jiroperty  specified  in  the  agree- 
ment ;  and  as  to  the  residue,  it  could  only  have  ordered,  in  pursu- 
ance of  the  agreement,  "  that  the  bills  he  dismissed  toith  costs.^\i) 
To  make  a  decree  a  good  and  available  bar,  in  any  subsequent  suit, 
it  is  not  sufficient  merely  to  shew,  that  the  bill  was  dismissed  ;  but 
the  party  must  go  further,  and  shew,  that  the  matter  of  the  bill  was 
res  judicata ;  that  there  was  an  absolute  determination  by  the  court, 
that  the  party  had  no  title. (J)  But  the  Chancellor  could  not,  in 
those  cases,  have  given  any  determination  in  relation  to  the  plain- 
tifTs  title  to  dower  in  the  Fountain  Inn ;  because  he  was  deprived 
of  the  means  of  doing  so  by  the  agreement,  which  simply  directed, 
that  those  suits  as  to  that  property  should  be  dismissed  with  costs. 
No  decree  which  the  Chancellor  could  have  pronounced  in  pursu- 
ance of  that  agreement,  could  have  given  to  it  any  additional  extent 


(i)  Rowe  V.  "Wood,  1  Jac.  &.  WaUc.  345.— (J)  Erandlyn  v.  Ord,  1  Atk.  571 ;  Mitf. 
Tr.  238;  2  Mad.  Cha.  312;  Beam.  PI.  Eq.  218. 


HANNAH  K.  CHASE'S  CASE.  221 

or  force  as  a  bar  against  the  present  plaintiff.  There  was,  however, 
no  formal  decree  ever  passed  in  those  cases; -they  were  closed  on 
the  19lh  of  July,  1819,  by  the  short  docket  entry  "  agreed,"  evidently 
in  reference  to  this  written  agreement. 

The  question,  therefore,  recurs  upon  the  agreement  alone.  It  is 
stipulated,  that  the  bills  be  dismissed  as  to  the  property  not  included 
in  the  asfreement.  It  is  a  contract  to  abandon  those  suits ;  but  it 
is  not  a  relinquishment  of  the  right  claimed  by  them.  The  two 
things  are  substantially  different ;  and  that  difference,  it  appears 
from  the  whole  phraseology  of  the  agreement,  was  in  the  then 
contemplation  of  the  parties.  Much  is  directed  to  be  done,  to 
facilitate  the  speedy  progress  of  the  suit ;  the  usual  formal  and 
tedious  mode  of  collecting  testimony,  necessary  to  a  correct  decision 
upon  the  rights  of  the  parties,  is  dispensed  with  ;  and  the  suits 
are  to  be  brought  to  a  close  in  a  summary  way  ;  but  no  right  is 
ceded,  no  title  is  relinquished  by  either  party.  On  the  contrary, 
we  are  told,  that  the  plaintiff  is  to  recover;  provided,  and  only 
provided  the  Chancellor  shall  so  determine.  The  defendants 
concede  to  the  plaintiff  nothing,  absolutely  nothing.  They,  there- 
fore, can  have  no  equitable  ground  to  claim  from  her  an  abandon- 
ment of  her  rights.  The  agreement,  that  the  bills  be  dismissed 
must  be  considered  as  referring  to  a  mere  voluntaiy  dismissal  by 
the  plaintiff  herself,  which  would  leave  her  rights  and  interests 
untouched  and  unimpaired  in  all  respects  whatever. 

This  agreement  is  not  so  explicit  as  it  might,  and  perhaps  ought 
to  have  been ;  but,  after  mature  consideration,  I  find  enough  in  it 
to  bring  my  mind  satisfactorily  to  the  conclusion,  that  it  cannot  be 
deemed  a  relinquishment  of  the  plaintiff's  right  of-  dower  in  the 
Fountain  Inn.  The  solicitors  on  both  sides  have  contended,  that 
it  is  entirely  unambiguous  ;  and  yet  they  have  had  recourse  to  the 
proofs  and  circumstances  to  aid  the  interpretation  respectively  con- 
tended for.  A  few  remarks  upon  those  circumstances  and  proofs 
seem  therefore  to  be  required. 

To  the  lease  from  the  late  husband  of  the  plaintiff  to  Bryden, 
of  the  Fountain  Inn,  she  made  a  formal  relinquishment  of  dower. 
This  lease  did  not  expire  until  the  26th  of  February,  1821,  some 
years  after  the  commencement  of  the  two  former  dower  suits. 
This  was  an  embarrassing  circumstnnce.  These  defendants  admit 
it  to  have  been  so  considered  at  that  time ;  for  they  say,  in  their 
answer,  that,  as  they  have  been  advised,  the  plaintiff's  acknow- 
ledgment of  the  lease  to  Bryden  did  not  operate  as  a  bar  of  her 


222  HANNAH  K.  CHASE'S  CASE. 

dower  ;  but  merely  as  a  suspension  of  execution  during  the  term  ; 
and  that  the  right  to  dower  might  have  been  determined  in  those 
suits.  But,  these  defendants,  not  satisfied  with  teUing  us  of  the 
advice  they  had  obtained,  as  to  this  apparent  difficulty,  have  drawn 
forth  that  which  was  given  to  the  plaintiff  upon  the  same  subject. 

The  policy  of  the  law  does  not  permit  a  solicitor  to  divulge  the 
secrets  of  his  client.  Such  confidential  communications  are  not  to 
be  revealed  at  any  period  of  time,  either  before  or  after  the  suit  has 
been  brought  to  an  end,  or  in  any  other  suit ;  for,  as  to  all  such 
matters  his  mouth  is  shut  for  evev.{k)  A  solicitor  may  refuse  to  act 
further  for  his  client,  but  he  cannot  go  over  to  the  opposite  party.  (/) 
But  this  obligation  of  secrecy  is  the  privilege  of  the  client,  not  the 
incompetency  of  the  solicitor.  In  this  case,  the  defendants  have 
called  on  the  plaintiffs  solicitors  to  tell  of  their  advice  and  opinions 
to  their  client ;  and  the  plaintiff  has  not  objected.  She  has  waived 
her  privilege.  Hence  her  solicitors  are  legal  and  competent  wit- 
nesses. It  appears  by  their  depositions,  that  their  recollection  of 
facts  and  occurrences  which  happened  at  the  time  of  the  agreement, 
about  the  two  former  dower  suits,  is  very  obscure  and  general. 
But  there  is  no  ambiguity  in  their  letter  of  the  28th  of  September, 
1816. 

Their  advice  respecting  this  estate  called  the  Fountain  Inn,  is 
remarkable  ;  it  is  expressed  in  these  words  : — "  We  are  of  opinion 
you  have  no  title  of  dower  during  Bryden's  lease ;  having  relin- 
quished your  dower  therein  during  said  lease,  which  will  expire  in 
1821.  Whether  upon  the  termination  of  said  lease,  you  will  be 
entitled  to  dower,  is  a  question  of  some  difficulty ;  and,  perhaps, 
can  only  be  solved  by  some  further  proof  in  point  of  fact  relative 
to  the  nature  and  effect  of  the  contract  between  the  late  Judge 
Chase  and  Bryden.^''  And,  after  some  further  observations  as  to  this 
contract,  they  say  : — "  We  do  not  think,  that  this  difficulty  should 
prevent  a  settlement  as  to  the  residue  of  the  property  in  which 
dower  is  asserted  ;  in  relation  to  which,  we  have  reason  to  believe, 
no  opposition  will  be  made  to  your  claim.  If,  before  the  lapse  of 
five  years,  the  question,  as  to  Brydeii's  property,  should  not  be 
settled,  the  question  between  you  will  be  narrowed  down  to  a 
single  point,  in  the   adjustment  of  which  we  suppose   no    great 

(/c)  Vaillant  v.  Dodemead,  2  Atk.  524  ;  Sandford  v.  Remington,  2  Ves.  jun.  1S9  ; 
Richards  v.  Jackson,  IS  Ves.  472 ;  Parkhurst  v.  Lowten,  3  Mad.  121 ;  Arnot  v. 
Biscoe,  1  Ves.  95 ;  Wilson  v.  Rastall,  4  T.  R.  753 ;  Bui.  N.  P.  284.— (/)  Cholmon- 
deley  v.  Clinton,  19  Ves.  272. 


HANNAH  K.  CHASE'S  CASE.  223 

difficulty  can  take  place."  After  the  receipt  of  this  advice  the 
plaintiff  signed  the  agreement  S.  M. 

These  circumstances  and  this  letter  fortify  the  construction  I 
have  put  upon  tlie  agreement  S.  J\I.  The  plaintifPs  agreeing  to 
dismiss  her  bills,  as  to  the  Fountain  Inn,  and  also  to  submit  to  the 
payment  of  costs,  is  satisfactorily  accounted  for.  It  thus  clearly 
appears,  that  so  far  from  relinquishing  any  right,  she  then  merely 
withdrew  from  before  the  tribunal,  with  a  fixed  resolution  to  return 
to  the  contest  at  a  more  convenient  season ;  unencumbered  with 
matters  which  might  be  then  disposed  of  and  finally  adjusted. 

It  is,  therefore,  my  opinion,  that  neither  the  institution  and 
termination  of  those  suits,  nor  the  agreement  S.  M.,  can  in  any 
manner  whatever  be  considered  as  a  bar,  or  release  of  the  right 
now  asserted  by  this  plaintiff. 

The  next  question  is,  whether  the  late  husband  of  the  plaintiff 
had  an  estate  in  the  Fountain  Inn  during^  their  marriage,  of  which 
she  is  dowable.  It  is  admitted  on  all  hands,  that  the  legal  estate 
in  fee  simple  of  this  property  was  originally  in  Harry  D.  Gough; 
all  who  are  any  way  concerned  in  this  controversy  deduce  their 
interests  from  him ;  and,  consequently,  the  only  question  now  is, 
whether  James  Clarke^  to  whom  Gough  conveyed,  and  the  late 
Samuel  Chase,  to  whom  Clarke  conveyed,  held  as  mortgagees  from 
Bryden,  or  any  one  else ;  or  whether  Clarke,  and  from  him  Chase, 
obtained  an  absolute  indefeasible  legal  estate  in  fee  simple,  or  only 
an  equitable  interest. 

It  appears,  by  the  recitals  in  the  conveyance,  dated  the  4th  of 
Februaiy,  1806,  from  James  Clarke  to  the  late  Samuel  Chase,  that 
Harry  D.  Gough,  who  was  seized  of  an  estate  in  fee  simple  in  the 
land  covered  by  the  Fountain  Inn,  had  agreed  to  sell  it  to  Daniel 
Grant,  and  gave  his  bond  with  a  condition  to  convey  it  to  him 
when  he  paid  the  purchase  money.  Grant  sold  his  interest,  and 
assigned  this  bond  to  James  Bryden ;  and  Jame,<s  Clarke  and  John 
Smith  became  Brydenh  sureties  for  the  payment  of  the  balance  of 
the  purchase  money  due  to  Gough,  and  also  for  the  sum  which  he 
had  agreed  to  pay  Grant.  Bryden  paid  and  satisfied  Grant  in  full. 
Then  Clarke,  it  is  said,  at  the  request  of  Bryden,  paid  Gough 
$7,216  42,  the  amount  then  due  to  him ;  who  thereupon  conveyed 
the  fee  to  Clarke  ;  and  Bryden  delivered  to  Gough  his  bond.  After 
which,  at  the  request  of  Bryden,  the  late  Samuel  Chase  paid  Clarke 
tlie  sum  he  had  paid  to  Gough,  and  also  paid  to  Bryden  the  sum 
of  $10,283  58 ;    amounting   altogether  to  the  sum  of  $17,500. 


224  HANNAH  K.  CHASE'S  CASE. 

Whereupon  Clarke  conveyed  to  Chase  an  absolute  estate  in  fee 
simple.  On  the  twenty-sixth  of  the  same  month,  in  which  Chase 
had  obtained  this  conveyance,  he  leased  the  property  to  Bryden  for 
the  term  of  fifteen  years,  reserving  an  annual  rent  of  $2000  ;  to 
w^hich  lease  Chasers  wdfe,  the  present  plaintiff,  added  her  relinquish- 
ment of  dower  in  the  usual  form.  And  on  the  same  day  on  which 
the  lease  bears  date.  Chase  executed  his  bond  to  Bryden,  stipulating, 
in  the  condition,  that  if  Bryden  should  pay  him  the  sum  of  $17,500, 
at  the  expiration  of  fifteen  years  from  that  time,  and  not  before,  or 
within  one  year  thereafter,  and  not  afterwards,  that  then  he.  Chase, 
•would  reconvey  the  property  called  the  Fountain  Inn  to  Bryden. 
After  which,  on  the  2d  of  April,  1811,  Samuel  Chase,  jim'^r,  one 
of  these  defendants,  proposed  to  purchase  this  property  of  the  late 
Samuel  Chase,  and  in  that  proposal  he  speaks  of  the  dower  of  the 
present  plaintiff  as  a  then  vested  legal  right.  -  This  proposal  was 
matured,  and  the  property  was  conveyed  by  the  late  Samuel  CJiase 
to  this  defendant  Samuel  Chase,  juii'r,  in  trust,  or  out  of  which  he 
was  to  make  provision  for  Matilda  Ridgely  and  ^nn  Chase,  two 
others  of  these  defendants,  and  daughters  of  the  late  Samuel  Chase. 

It  has  been  urged,  that  Bryden  always  understood  this  contract 
betw^een  the  late  Samuel  Chase  and  himself  to  be  nothing  more  than 
a  mortgage  ;  and  that  he  instituted  a  suit  in  this  court  to  set  aside 
this  absolute  conveyance  from  Clarke  to  Chase,  and  to  be  let  in  to 
redeem.  It  has  also  been  urged,  that  Samuel  Chase,  one  of  the 
present  defendants,  under  a  conviction  that  Bryden  had  a  good 
and  available  right,  purchased  his  interest.  This  may  be  all  true ; 
but  surely  the  assertions  of  Bryden,  however  solemn  or  formal,  or 
the  mere  acts  or  allegations  of  any  of  these  defendants,  not  respon- 
sive to  the  biU,  cannot  be  seriously  regarded  as  a  part  of  the  legal 
and  pertinent  proofs  in  the  case.  Therefore,  all  these  sayings  and 
doings  of  Bryden,  and  of  these  defendants,  must  be  entirely  put 
aside  as  foreign  to  the  subject  now  under  consideration.  There  is 
then,  in  fact,  no  proof  whatever,  in  relation  to  the  nature  of  the 
contract  between  the  late  Samuel  Chase  and  James  Bryden,  other 
than  that  afforded  by  these  several  deeds  and  instruments  of  writing 
themselves. 

The  various  contracts,  made  at  different  times,  by  the  several 
parties  concerned,  from  Gough  to  the  late,  Samuel  Chase,  exhibit 
this  matter  in  an  obscure  and  circuitous  form,  from  which  it  may 
be,  in  some  degree,  relieved  and  shortened,  without  enfeebling  the 
pretensions  of  either  of  the  present  parties,  by  regarding  Gough, 


HANNAH  K.  CHASE'S  CASE.  223 

Grant,  Clarke,  and  Bryden,  as  the  persons  who  held  the  entire 
estate,  legal  and  equitable ;  and  as  the  grantors  in  fee  simple  to 
the  late  Samuel  Chase,  for  the  consideration  of  $17,500.  It  is 
clear  from  the  indenture  of  the  4th  of  February,  1806,  that  the 
late  Samuel  Chase  obtained  the  whole  and  entire  interest  of  all 
those  persons,  as  well  at  law  as  in  equity ;  and  became  thereby 
Tested  with  an  absolute  estate  in  fee  simple.  Because,  it  appears 
by  the  recitals  of  that  deed,  that  he  had  paid  Gough  and  Clarke 
for  the  legal  interest  they  held ;  and  that  he  had  also  paid  for  the 
equitable  interest  of  Grant  and  Bryden.  From  this  deed  alone, 
therefore,  there  can  be  no  doubt,  that  the  late  Samuel  Chase  held 
an  estate  in  fee  simple,  of  which  this  plaintiff  is  dowable. 

But  the  bond  of  the  26th  of  February,  1806,  it  is  said,  shows 
that  the  previous  contract,  of  the  4th  of  the  same  month,  according 
to  the  true  intention  of  the  parties,  is  only  to  be  regarded  as  a 
mortgage ;  that  it  is  not,  as  it  purports  to  be  upon  its  face,  an 
absolute  sale ;  but  a  mere  security  for  the  loan  of  money  from 
the  late  Samuel  Chase  to  James  Bryden.  It  is  true,  the  court 
should,  in  cases  of  this  nature,  look  into  the  various  contempora- 
neous agreements  and  dealings  between  the  parties  to  ascertain 
what  was  their  design,  and  the  real  nature  of  their  contract. (/?i) 

This  case  is,  however,  susceptible  of  being  still  further  simplified 
and  reduced.  Let  it  be  supposed,  that  Bryden  had  obtained  the 
entire  estate  in  fee  simple  from  Gough,  Grant,  and  Clarke  ;  and, 
being  so  seized,  that  he  alone  was  the  grantor  by  the  deed  of  the 
4th  of  February.  Then,  let  this  bond,  of  the  26th  of  February,  be 
considered  together  with  or  even  as  a  part  of  that  deed.  The  whole 
will  read  as  an  absolute  sale,  with  nothing  more  than  a  condition 
for  a  re-purchase. 

That  this  whole  transaction,  from  whatever  point  of  view  it  may 
be  contemplated,  can  only  be  considered  as  an  absolute  sale,  with 
a  condition  or  covenant  for  a  re-purchase,  is  manifest ;  because,  it 
wants  all  the  usual  badges  and  characteristics  of  a  mortgage.  The 
money  paid  was,  so  far  as  appears,  a  fair  price  for  the  absolute 
purchase  of  such  property  ;  liable  to  much  injury,  requiring  frequent 
repairs,  and  of  fluctuating  feshion  and  profits.  Although  Chase 
was  not  put  into  actual  possession,  yet  Bryden  leased  from  him, 
and  held  as  his  tenant.  Chase  received  the  rents  and  profits  for 
his  own  use  and  benefit,  and  gave  no  account  of  them  whatever. 

(m.)  Sevier  v.  Greenway,  19  Ves.  412. 
29 


226  HANNAH  K.  CHASE'S  CASE. 

The  chief  value  of  this  lot  of  land  within  the  city  of  Baltimore, 
consisted  in  there  being  a  large  edifice  erected  upon  it,  which  was 
occupied  and  used  as  a  tavern :  the  loss  of  which,  if  destroyed  by 
fire  or  otherwise,  must  have  been  borne  by  Chase  ;  as  it  was  held 
at  his  risk  entirely. (?i)  There  was  nothing  of  that  reciprocity  so 
essentially  necessary  to  constitute  a  mortgage.  It  is  as  essential 
that  the  one  party  should  have  it  in  his  power,  at  some  specified 
time,  to  compel  the  re-payment  of  the  money,  or  to  foreclose,  as 
that  the  other  should  have  it  in  his  power  to  redeem.  But,  although 
Bryden  might  re-purchase  for  a  stipulated  sum  at  any  time,  during 
the  sixteenth  year  after  the  date  of  the  contract,  yet  Chase  could 
not  compel  Bryden  to  pay  any  sum  of  money,  at  any  time  :  Chase 
took  no  bond,  or  other  collateral  security  from  Bryden  ;  nor  is  there 
any  clause  in  any  deed  or  conveyance,  by  which  Bryden  covenants 
or  promises  to  pay  Chase  any  sum  of  money.  If  the  edifices  had 
been  destroyed,  or  the  property  had  been  ever  so  much  reduced  in 
value.  Chase  could  have  recovered  nothing  of  Bryden.  The  contract 
is,  therefore,  utterly  destitute  of  that  mutuality  always  incident  and 
necessarily  belonging  to  a  mortgage  of  any  description. (o)  But  it 
appears,  by  the  lease  from  Chase  to  Bryden,  that  this  contract 
was,  notwithstanding  the  bond,  regarded  as  an  absolute  sale  with 
a  condition  to  re-purchase,  and  nothing  more,  by  Bryden  himself; 
for,  he  obtained  and  accepted  a  relinquishment  of  the  right  of  dower 
of  the  wife  of  Chase.  And  it  appears,  from  the  proposals  of  Samuel 
Chase,  one  of  these  defendants,  made  on  the  2d  of  April,  1811, 
that  he  also,  then  considered  the  contract  as  an  absolute  sale ;  for, 
he  speaks  of  this  plaintifTs  then  existing  right  of  dower. 

Upon  the  whole  I  am  satisfied,  that  the  late  Samuel  Chase  was 
seized  of  an  estate  in  fee  simple  in  this  property,  of  which  the 
plaintiff,  as  his  widow,  is  entitled  to  dower. 

The  next  inquiry  is,  as  to  the  extent  of  the  recovery.  Some  of 
the  authorities  cited  in  reference  to  this  branch  of  the  case,  related 
exclusively  to  the  modern  creatures  of  equity,  called  terms  attendant 
upon  the  inheritance,  which  were  not  clearly  recognised  and  defined 
in  England  until  about  the  year  1670 ;  and  which  have,  so  far  as 
I  can  Itarn,  never  been  introduced  into  this  State,  and  are  not 
likely  to  become  fashionable  among  us.     The  equitable  principles 

(n)  Co.  Litt.  205,  n.  1 ;  Pow.  Mort.  125,  note  P.,  and  138,  note  T.— (o)  Tasburgh 
V.  Echlin,  Pow.  Mort.  133;  Thornborough  i\  Baker,  .3  Swan.  C31;  Goodman  v. 
Grierson,  2  Bal.  &  Bea.  279 ;  Robertson  v.  Campbell,  2  Call.  421  ;  Roberts  v.  Cocke, 
1  Rand.  121. 


HANNAH  K.  CHASE'S  CASE.  227 

in  relation  to  these  attendant  terms,  and  the  distinctions  between 
them  and  legal  terms  in  gross  are  entirely  foreign  from  the  present 
subject  of  consideration. 

The  lease  from  Chase  to  Bryden  created  a  legal  term  in  gross ; 
and  the  rent  reserved  was  an  annual  rent  service.  It  is  to  this 
particular  estate  which  the  acknowledgment  of  the  plaintiff  refers. 
Suppose  the  late  Samuel  Chase  had,  previously  to  his  marriage  with 
the  plaintiff,  executed  such  a  lease  as  this  to  Bryden.  How  would 
the  plaintiff's  claim  of  dower  have  been  affected  ?  It  is  clear,  that 
a  woman  may  be  endowed  of  a  rent  service,  rent  charge,  or  rent 
seek.  And,  to  use  the  words  of  the  most  accurate  and  profound  of 
the  English  lawyers,  "  If  the  husband  maketh  a  lease  for  years, 
reserving  rent,  and  taketh  wife,  the  husband  dieth,  the  wife  shall 
be  endowed  of  the  third  part  of  the  reversion  by  metes  and  bounds, 
together  with  the  third  part  of  the  rent,  and  execution  shall  not 
cease  during  the  years. "(p)  But  if  a  particular  estate  for  years 
be  carved  out  of  the  inheritance,  prior  to  the  marriage,  without  the 
reservation  of  any  rent  whatever,  then  the  widow  can  only  recover 
her  dower  in  the  reversion,  with  a  cesset  executio  during  the  term. (9) 
Hence  it  is  certain,  that,  if  this  lease  to  Bryden  had  been  made 
prior  to  the  marriage,  this  widow  would  have  been  entitled  to  dower 
in  the  reversion,  and  in  the  rent  immediately  from  the  death  of  her 
husband. 

The  question  tlien  resolves  itself  into  this  :  has  the  plaintiff's 
acknowledgment  placed  her  in  the  same,  or  in  a  different  situa- 
tion from  that  she  would  have  been  in,  had  the  lease  to  Bryden 
been  made  before  her  marriage  ?  At  one  time,  an  opinion  pre- 
vailed, that  ?ifeme  covert  could,  in  no  way,  bar  or  divest  herself  of 
her  right  of  dower  during  her  coverture.  But,  we  are  told,  there 
can  now  be  no  question,  that  if  the  husband  and  wife  levy  a  fine, 
the  wife  is  barred  for  two  reasons.  First,  Because  the  intermarriage 
and  seisin  are  the  fundamental  causes  of  dower,  and  the  death  of 
the  husband  but  as  an  execution  thereof.  Secondly,  Because  all 
those  who  have  estate,  or  title,  or  claim,  join  in  the  assurance; 
and,  therefore,  in  such  case,  if  the  husband  and  wife  have  made  a 
lease  rendering  rent  to  the  husband  and  his  heirs,  and  afterwards 
the  wife  recovers  dower,  she  shall  hold  it  charged  with  the  term ; 
since  it  is  a  maxim,  that  all  lands  in  fee  simple  may  be  charged  in 
one  way  or  other.     But  in  such  case,  as  where  the  land  had  been 

(p)  Co.  Litt.  32.  a.— (7)  Pow.  Mort.  6S7,  note  P. 


228  HANNAH  K.  CHASE'S  CASE. 

thus  charged  before  marriage,  the  wife  would  be  dowable  of  the 
reversion  and  the  rent;(r)  so,  if  the  husband  and  wife  join  in 
levying  a  fine  to  effect  a  mortgage,  and  nothing  more,  the  wife's 
interest  will  be  affected  to  the  extent  of  the  mortgage,  and  no 
further.  She  will  have  a  right  to  redeem,  and  may  call  on  the 
personal  representatives  of  her  deceased  husband  to  discharge  the 
mortgage  debt  out  of  his  personal  estate,  so  as  to  free  her  dower 
from  all  incumbrance. (s) 

It  may  be  regarded  as  a  rule,  that  the  interest  of  a  feme  covert, 
w^ho  joins  in  IcA-ying  a  fine,  will  be  affected  no  further  than  according 
to  the  express  intention  of  the  fine.  Hence,  if  its  only  object  be 
to  improve  the  title  and  give  additional  security  to  the  lessee  for 
years,  or  mortgagee,  her  rights  will  be  impaired  in  no  respect  not 
necessaiy  for  that  purpose,  and  she  will  be  allowed  to  take  her 
dower  in  like  manner  as  if  such  lease  or  mortgage  had  been  made 
before  the  marriage. 

To  prevent  the  creation  of  perpetuities,  it  is  laid  down  as  a 
general  rule  of  law  in  England,  that  all  lands  may  be  charged  or 
aliened  in  one  way  or  other.  The  mode  of  conveyance  must  be 
adapted  to  the  nature  of  the  case ;  but,  if  the  proper  method  be 
pursued,  the  alienation  may,  in  most  cases,  be  made  effectual 
whatever  may  be  the  nature  of  the  estate  or  interest  of  the  grantor. 
If  it  be  an  estate  tail,  it  may  be  barred  by  a  fine  or  common 
recovery ;  or  if,  by  reason  of  the  peculiar  nature  of  the  estate, 
a  fine  cannot  be  levied,  or  a  common  recovery  had,  then  a  deed 
or  common  conveyance  will  be  sufficient. (^)  And  in  all  cases, 
a  Je77ie  covert,  if  she  be  of  full  age,  may  alien  her  fee  simple 
estate,  or  relinquish  her  claim  to  dower  by  means  of  a  fine.  Fines 
were  always  binding  upon  married  women  ;  though  it  was  thought 
proper  to  make  them  liable  to  examination  by  a  statute  of  the  year 
1290  ;(u)  but  it  was  not  merely  by  the  examination  that  the  fine 
had  its  efficacy.  (?:>)  The  mode  of  conveyance  by  fine  is  couched 
in  the  form  of  a  suit  upon  an  agreement ;  as  to  which  the  wufe  is 
examined  by  the  judges  of  the  court  apart  from  her  husband,  so  that 
it  may  appear  to  them,  that  she  perfectly  understands  what  she  is 
about  to  do,  and  freely  gives  her  consent  to  it ;  and  if  they  doubt 
of  her  age,  they  may  examine  her  upon  oath,  before  they  pronounce 

(r)  Co.  Litt.  343;  Lampet's  case,  10  Co.  49.— (s)  Pow.  Mort.  677,  note  D. 
(0  Ohvay  v.  Hudson,  2  Vern.  584  ;  Moore  v.  Moore,  2  Ves.  601 ;  Everall  v.  Smalley. 
1  Wils.  26.— (7t)  18  Ed.  1,  Stat.  4;  Kilt.  Rep.  146.— (t»)  Richards  v.  Chambers, 
10  Ves.  587. 


HANNAH  K.  CHASE'S  CASE.  229 

their  judgment.(w)  Upon  which  a  peculiar  efficacy  is  ascribed  to 
the  agreement,  so  that  it  is  not  open  to  objections  which  would 
be  fatal  to  an  agreement  of  a  married  woman,  authenticated  in  any 
other  way :  for  there  is  no  other  form  in  which  a  court  of  common 
law  can,  with  the  consent  of  a  feinx^  covert,  give  validity  to  her 
agreement  concerning  her  estate  ;  and  there  are  few  cases  in  which 
even  a  court  of  equity  can,  with  her  consent,  enable  her  to  dispose 
of  her  property,  real  or  personal. (x)  This  solemn  and  embarrassing 
mode,  by  which  alone  married  women  are  enabled  to  dispose  of 
their  rights  and  interests  in  real  estate  may  have  been,  and  may 
yet  be  well  suited  to  the  circumstances  and  state  of  society  in 
England ;  but  it  is  obviously  unsuited  to  the  state  of  things  in  our 
country,  and  much  more  so  formerly,  when  land  titles  were  so 
frequently  and  informally  transferred  from  one  to  another  as  to  have 
been,  for  some  time,  among  the  most  current  instruments  of 
traffic  among  the  colonists  ;(y)  than  now  when  real  estates  have 
become  better  settled  and  more  permanently  held. 

In  Pennsylvania,  and  many  of  the  other  colonies,  it  had  become 
usual  for  married  women  to  dispose  of  their  lands  or  to  relinquish 
their  right  of  dower  by  a  common  de^d,  or  instrument  of  writing 
executed  and  authenticated  as  if  they  had  been  sole;  which  con- 
veyances were  afterwards  confirmed,  and  the  custom  of  makino* 
such  deeds,  with  their  consent,  taken  on  a  private  examination, 
was  adopted  by  legislative  enactments,  (c)  In  Virginia,  where  the 
mode  of  conveyance  by  fine  was  never  in  use,  following,  as  it 
would  seem,  a  local  custom  of  Wales,  or  of  London,(a)  it  had 
become  usual  for  married  women,  in  order  to  effect  a  valid  con- 
veyance of  their  lands,  or  relinquishment  of  their  dower,  to  make 
an  acknowledgment  of  the  deed  in  a  private  examination  before 
the  general  or  county  court, (5)  which  mode  of  conveyance  was 
afterwards  confirmed  and  adopted  by  the  colonial  legislature. (c) 

In  Maiyland,  although  it  is  said,  that  lands  were  sometimes  con- 
veyed by  fine  passed  in  the  provincial  or  county  court, (<?)  or  by 
common  recover}-  ;(e)  yet  it  would  seem,  that  there  had  been  many 
instances  of  conveyances  made,  in  the  form  of  mere  common  con- 
tracts, with  intention  to  bind  the  interests  of  married  women  as  if 

(w)  2  Inst.  51.5.— (a:)  Richards  r.  Chambers,  10  Ves.  580 ;  Ritchie  v.  Broadbent, 
2  Jac.&Walk.  4.56.— (y)  Land  H.  A.  77.— (r)  Davey  r.  Turner,  1  DaJ.  11;  Lloyd  r. 
Taylor,  1  Dal.  17  ;  Watson  r.  Bailey,  1  Binn.470  ;  Jackson  v.  Gilchrist,  15  John.  89. 
(a)  Dyer,  363,  b.  Crui.  Dis.  tit.  Dower,  c.  4,  s.  15.— (6)  1  Virg.  Stat.  145,  note, 
(c)  2Virg.  Stat.  317.— (ri)  Hammond's  Lessee  i".  Brice,lH.&McH.  323.— (e)  1766, 
ch.21. 


230  HANNAH  K.  CHASE'S  CASE. 

they  had  been  sole,  which  were  afterwards  ratified  and  con- 
firmed.(/)  But  it  appears,  that  the  provincial  legislature  of 
Maryland  at  a  very  early  period  made  provision  for  quieting  pos- 
sessions and  establishing  the  manner  of  conveying  lands  by  deed 
acknowledged  and  recorded  •,{g)  and  prescribed  that  form  of  pri- 
vate acknowledgment  of  conveyances  of  real  estate  and  relin- 
quishment of  dower  from  femes  covert, {h)  which  has  been  re- 
enacted  and  continued  in  force  from  that  time  forward  by  the 
now  existing  law.(i)  Since  the  passage  of  which  law  the  method 
of  conveyance  by  fine  has  been  disused,  and  indeed  may  be  now 
considered  as  having  sunk  into  total  oblivion.(j) 


(/)  1671,  ch.  6;  1694,  ch.  11 ;  Land  H.  A.  214.— (g)  1663,  ch.  7.— (A)  1674, 
ch.  2,  3.  5 ;  1692,  ch.  30,  s.  5 ;  1699,  ch.  42,  s.  6.— (i)  171-5,  ch.  47.  B-heav.  Rhenner, 
1  Peters,  105.— (J)  Hammond's  Lessee  v.  Brice,  1  H.  &  McH.  323 ;  Kilt.  Rep.  146. 
The  recording  of  deeds  and  conveyances  of  land  in  Maryland  may,  at  first  view, 
seem  to  have  been  intended  altogether  and  exclusively  for  the  benefit  of  landholders ; 
but  the  lord  proprietary  had  also  a  considerable  interest  in  it ;  because  by  the 
tenure  on  which  he  granted  his  lands,  he  reserved  to  himself  a  small  annual  quit 
rent,  and  a  fine  for  every  alienation ;  and  the  recording  of  deeds  and  wills  afforded 
the  means  of  ascertaining  and  collecting  that  branch  of  his  revenue. — Land  H.  A. 
233,  244,  259,  266.  Land  Office  Records,  Journal  of  the  Board  of  Revenue.  The 
first  General  Assembly  of  the  Republic  resorted  to  the  same  sources  of  information 
for  the  purpose  of  correctly  taxing  real  estate,  by  directing,  that  the  then  late 
receivers  of  the  quit  rents  for  each  county  should  make  out  lists,  from  their  last  debt- 
books,  of  the  names  and  quantity  of  acres  of  every  tract  of  land  within  the  county, 
and  to  whom  the  same  belonged  or  ought  to  be  charged,  and  to  deliver  such  lists  to 
the  commissioners  of  the  tax  for  the  county. — February,  1777,  ch.  21,  s.  22.  Since 
then  the  acts  which  have  been  passed  for  the  assessment  of  taxes  upon  property 
have  required  the  register  of  the  land  office,  and  the  clerks  of  courts,  by  whom  deeds 
are  required  to  be  recorded,  to  furnish  the  commissioners  of  the  tax  with  lists  of 
alienations  of  lands  thus  shewn  by  their  records,  in  order  to  ascertain  to  whom  the 
tax  should  be  charged,  1803,  ch.  92,  s.  37  &  33,  &c. 

The  fines  for  alienation,  or  the  casualties  of  the  feudal  law  were  taxes  upon  the 
transference  of  land  both  from  the  dead  to  the  living,  and  from  the  living  to  the  liv- 
ing. In  ancient  times  they  constituted,  in  every  part  of  Europe,  one  of  the  princi- 
pal branches  of  the  revenue  of  the  crown  ;  which,  like  all  such  taxes,  fell  most 
lieavily  upon  the  necessitous  or  the  poor ;  and,  so  far  as  they  diminished  the  capital 
value  of  the  property  so  taxed,  tended  to  diminish  the  funds  destined  for  the  mainte- 
nance of  productive  labour. — Smith's  W.  Nations,  b.  5,  c.  2,  app.  to  art.  18^2.  The 
fines  payable  to  the  lord  proprietary  on  every  such  transfer  here  also,  as  it  appears, 
constituted  a  considerable  portion  of  his  revenue.— Casse/Z  v.  Carroll,  11  JVJieat.  134. 
The  registration  of  mortgages,  and  in  general  of  all  rights  upon  immovable  pro- 
perty, says  an  enlightened  philosopher,  as  it  gives  great  security  to  both  creditors 
and  purchasers,  is  extremely  advantageous  to  the  public. — Smith's  W.  Nations,  b.  5, 
c.  2,  app.  to  art.  I  £f  2.  Yet  an  eminent  English  lawyer  has  delivered  it  as  his  settled 
conviction,  that  a  general  registry,  throughout  England,  would  entail  a  great  and  cer- 
tain expense  on  property  for  a  very  uncertain  benefit.  Because  a  general  registry 
wantonly  exposes  the  concerns  of  all  mankind  ;  and  by  the  negligence  of  an  agent,  a 


HANNAH  K.  CHASE'S  CASE.  231 

The  acknowledgment  of  a  feme  covert  to  a  deed,  as  prescribed 
by  the  act  of  assembly,  it  is  obvious,  was  introduced  as  a  substi- 
tute for  a  fine ;  and  although  a  deed  of  bargain  and  sale,  so  ac- 
knowledged, will  not,  like  a  fine,  as  relates  to  the  interests  of  third 
persons,  work  a  discontinuance,(/c)  yet  as  regards  the  feine,  covert 
herself  it  as  eifectually,  and  to  a  like  extent,  passes  her  interest 
as  a  fine.(/)  Hence  an  acknowledgment  of  ^  feme  coygr^,  made 
according  to  the  act  of  assembly,  like  that  made  on  levying  a  fine, 
can  operate  only  so  far,  and  no  farther,  than  the  deed  itself,  to 
which  it  is  annexed,  would  operate,  according  to  its  nature,  sup- 
posing it  to  have  been  made  by  the  husband  before  the  marriage, 
or  by  herself  alone  while  sole. 

It  is,  therefore,  my  opinion,  that  the  acknowledgment  of  this 
plaintiff  to  the  lease  to  Bryden,  can  only  be  construed  as  an 
improvement  and  further  security  to  Brydeii's  title ;  and  that,  on 
the  death  of  Samuel  Chase,  the  plaintiff  became  immediately 
entitled  to  dower  in  the  reversion  of  the  Fountain  Inn ;  and  also 
in  the  rent  reserved  by  that  lease,  without  delay  of  execution 
during  the  term. 

At  law,  the  widow  can  recover  damages  or  mesne  profits  for  the 
detention  of  her  dower  only  from  the  time  it  was  actually  demanded 
of  the  heir.  And  if  the  jury  fail  to  assess  damages  for  the  deten- 
tion, she  can  recover  no  costs ;  because  costs  are  given  only  where 
damages  are  recovered. (/)  But  in  equity  it  is  otherwise  ;  here  it 
is  the  course  of  the  court  to  assign  her  dower,  and  universally  to 
give  her  an  account  of  the  rents  and  profits  from  the  death  of  her 
husband.  But  where  the  heir  throws  no  difficulties  in  her  way, 
and  admits  her  claim,  she  has  no  costs. (m)  In  this  case,  how- 
ever, it  appears,  that  every  possible  opposition  has  been  made  to 
this  plaintiff's  claim. (w)  As  to  the  value  of  the  rents  and  profits, 
one-third  of  the  rent  reserved  by  the  lease  to  Bryden,  and  no  more, 
can  be  recovered  durinsf  that  term.     After  that  time  the  actual 


purchaser  or  mortgagee  may  lose  the  estate,  if  the  seller  or  mortgagor  fraudulently 
sell  or  mortgage  to  another  person  -whose  deed  is  the  first  registered,  and  questions 
upon  the  priority  of  registered  deeds  often  lead  to  litigation. — Sugdcn's  Letters  on 
Sales,  he.  47. 

(k)  Lawrence  v.  Heister,  3  11.  Sc  J.  377 ;  ]\Iayson"s  Lessee  v.  Sexton,  1  H.  & 
McII.  275  ;  Nicholson's  Lessee  v.  Hcmsley,  3  H.  8c  McH.  409.— (Z)  Colegate  D. 
Ovving's  case,  post  000. — (Z)  William  v.  Gwj'n,  2  Saund.  45,  note  ;  Pow.  Mort.  718, 
noteP;  2  Hair.  Ent.  698.— (m)  Curtis  v.  Curtis,  2  Bro.  C.  C.  632;  Dormer  v. 
Fortesque,  3  Atk.  130.— (n)  Lucas  v.  Calcraft,  1  Bro.  C.  C.  134;  Worgan  v.  Ryder, 
1  Ves.  &  Bea.  20  ;  2  Mad.  Chan,  564. 


232  HANNAH  K.  CHASE'S  CASE. 

value  must  be  the  criterion.  For,  as  it  is  said,  if  a  wife  be  entitled 
to  dower  of  land  worth  no  more  than  five  dollars  per  acre,  and  the 
heir  by  his  industry  or  b)y  building  thereon  makes  it  worth  fifty 
dollars  per  acre ;  the  widow  shall  have  her  dower  according  to  the 
improved  value.  So,  on  the  other  hand,  if  the  property  be  impaired, 
she  can  recover  only  according  to  the  reduced  value. (o)  But  the 
heir  is  entitled  to  no  allowance  for  meliorations  and  improvements. 
The  account  of  the  rents  and  profits  must  be  taken  according  to 
these  principles.  Interest  must  be  allowed  on  the  rent  from  the 
time  it  became  due  or  was  actually  paid  by  the  tenant,  as  it  shall 
appear,  (^j) 

There  is  yet  one  other  branch  of  this  case  to  be  disposed  of.  The 
plaintiff  prays,  that  the  two-thirds  of  this  property,  not  covered  by 
her  claim,  may  be  sequestered  or  sold  to  satisfy  the  amount  which 
may  be  awarded  to  her  for  rents  and  profits.  I  have  been  referred 
to  no  authority  which  would  warrant  a  sequestration  or  sale  as 
prayed ;  nor  do  I  know,  that  there  is  any  such  authority  to  be 
found.  Perhaps  the  power  to  sequester  might  have  been  thought 
to  rest  upon  principles  similar  to  those  on  which  I  founded  the 
order  appointing  a  receiver.  The  cases  are,  however,  widely  dif- 
ferent. The  sole  object  of  appointing  a  receiver  is  to  take  care  of 
the  subject  about  which  the  parties  are  contending,  and  to  prevent 
it  from  being  wasted  or  lost.  Such  an  appointment  involves,  a 
decision  upon  no  right ;  and  cannot  affect  any  point  in  controversy. 
But  a  sequestration,  or  sale,  makes  a  temporary  or  a  total  disposi- 
tion of  the  property,  which  can  be  done  in  no  instance  where  the 
matter  is  not  put  in  issue  by  the  nature  of  the  case,  and  a  seques- 
tration or  sale  is  not  expressly  authorized.  From  the  nature  of  the 
decree,  here  called  for,  the  title  of  the  defendants  and  their  enjoy- 
ment of  the  two-thirds  must  be  left  undisturbed.  It  is.  their  pro- 
perty. But,  like  any  other  property  belonging  to  them,  it  will  be 
subject  to  seizure,  and  sale  under  2i  fieri  facias  upon  a  decree  com- 
manding them  to  pay  the  plaintiff  a  specified  sum  of  money,  should 
they  fail  to  comply.  These  prayers  of  the  plaintiff  must,  there- 
fore, be  rejected. 

There  may  be  some  difficulty  in  assigning  the  plaintiff  dower  in 
this  property,  owing  to  its  peculiar  nature.  It  is  represented  to  be 
a  large  and  valuable  edifice,  chiefly  or  altogether  occupied  as  a 


(o)  Co.  Litt.  .32,  a.— (p)   Tew  v.  Winterton,  1  Ves.  jun.  451 ;    Baird  v.  Bland, 
5  Mun.  492;  Davis  v.  Walsh,  2  H.  &  J.  344. 


HANNAH  K.  CHASE'S  CASE.  233 

tavern.  And  it  may  turn  out,  upon  inquiry,  that  it  is  incapable  of 
being  advantageously  occupied  in  any  other  way ;  or  perhaps  of 
being  divided  at  all.  A  rent  may  be  given  for  equality  of  parti- 
tion or  in  lieu  of  dower ;  which  in  its  nature  will  be  distrainable  of 
common  right. (9)     I  shall  therefore,  in  the  decree  appointing  the 


(f7)  Co.  Litt.  144,  169 ;  Turney  v.  Sturges,  Dyer,  91 ;  Dacre  v.  Gorges,  2  Sim.  St 
Stu.  454 ;  Com.  Dig.  tit.  Annuity,  (A.  3.)  ;  Waifield  v.  Warfield,  5  H.  &  J.  459. 

CoKSE  V.  Polk. — The  bill,  filed  on  the  10th  of  December,  1818,  states,  that  Alex- 
ander Stewart,  and  Mary  his  wife,  being  seized  of  certain  lands,  in  her  right,  by  deed 
conveyed  them  to  Warner  Razin  to  hold  in  trust  for  the  use  of  them  and  the  survivor 
for  life,  remainder  to  their  children  ;  that  they  are  both  dead,  leaving  only  three  chil- 
dren the  parties  to  this  suit;  that  the  defendants  are  infants.  Prayer  for  a  partition. 
The  defendants  Polk  and  wife  made  answer  admitting  the  statement  of  the  bill. 
Rebecca  R.  Stewart  answered  by  guardian,  also  admitting  the  allegations  of  the  bill. 
The  trustee  does  not  appear  to  have  been  made  a  party.  On  the  1st  of  April,  1819, 
an  interlocutory  decree  to  make  partition  was  passed,  and  the  usual  commission  was 
issued,  and  a  return  made  thereon. 

16th  July,  1819. — Kilty,  Chancellor. — Ordered  that  the  return  made  by  the  com- 
missioners under  the  interlocutory  decree  for  partition  be  confirmed,  unless  cause 
shewn  before  the  1st  day  of  September  next;  provided  a  copy  of  this  order  be  served 
on  the  defendant,  James  Polk,  and  on  the  guardian  of  Rebecca  R.  Stewart,  before 
the  15th  day  of  August  next. 


The  commissioners  returned,  that  they  had  divided  the  lands  as  described,  &c.  and 
then  say,  "  they  do  further  certify  and  return,  award  and  adjudge,  that  the  said  Unit 
Corse  and  Mary  his  wife,  pay  to  Rebecca  R.  Stewart,  the  sum  of  one  thousand  and 
ninety-seven  dollars  and  thirty-three  and  a  third  cents,  and  to  James  Polk  and  Ann 
Maria  his  wife,  the  sum  of  five  hundred  and  thirty  dollars  and  eighty-three  and  a 
third  cents."  The  defendants  filed  objections  to  this  return,  because  among  other 
things,  "  the  said  lands  are  capable  of  a  specific  equal  division,  and  ought  to  have 
been  so  divided  among  the  respective  claimants  according  to  quantity  and  quality." 

15</i  February,  1821. — Kilty,  Chancellor. — An  order  was  passed  during  the  pre- 
sent term,  to  wit,  on  the  25th  of  January,  1821,  for  a  hearing  of  the  objections  filed 
by  James  Polk  at  March  term  next  on  notice  ;  but  the  parties  having  since  submitted 
tliem  on  notes  in  writing,  they  are  now  taken  up  for  consideration. 

I  do  not  view  the  commission  or  any  part  of  the  proceedings  as  being  ordered 
under  the  act  to  direct  descents  ;  but  under  the  provisions  of  the  common  law  as  to 
partition,  which  is  exercised  by  the  Chancery  Court,  and  is  recognised  by  the  act  of 
1794,  ch.  60.  Of  course  a  sale  could  be  ordered  as  suggested  by  the  counsel  of  J. 
Polk,  and  a  partition  must  in  some  way  be  made. 

The  parties  have  not  had  any  fiirther  survey  or  taken  proof  under  the  order  of 
December  term  1819;  the  counsel  for  J.  Polk  relying  on  his  objections,  that  the 
commissioners  had  not  complied  witli  their  directions. 

The  objections  drawn  from  the  terms  of  the  commission  are  not  considered  valid. 
An  equal  division  may  exist  where  the  dillerence  in  quantity  or  quality  is  made  up 
in  money.  The  assignment  of  the  several  parts,  although  it  has  not  been  expressed 
in  tlie  commission,  is  included  in  the  jiower  to  divide.  It  is  conlbrmablo  to  the  prac- 
tice where  tlie  commissioners  think  proper  so  to  do ;  and  if  they  omit  it,  the  assign- 
ment to  each  party  is  made  by  tlie  court  by  lot,  for  \vhich  however  there  is  no 
express  authority. 

30 


234  HANNAH  K.  CHASE'S  CASE. 

commissioners  to  lay  off  and  assign  the  plaintiff's  dower  in  this 
property,  leave  sufficient  latitude  for  them  to  report  specially  all  cir- 
cumstances ;  and  also  in  the  alternative.  So  that  the  final  decree 
may  be  adjusted  to  suit  the  case,  alter  the  parties  have  been  heard. 
As  to  the  rents  and  profits  the  case  will  be  sent  to  the  auditor. 

Decreed,  that  the  said  Hannah  K.  Chase,  the  plaintiff,  is  entitled 
to  dower  in  all  that  messuage,  tenement,  and  lot  of  land  in  the  pro- 
ceedings mentioned,  called  the  Fountain  Inn.  And  to  the  end 
that  this  court  may  be  enabled  to  make  a  just  assignment  to  the 
plaintiff  of  her  dower  in  the  aforesaid  messuage,  lands  and  tene- 
ments, it  is  ordered,  that  a  commission  issue  to  Benjamin  C.  Rid- 
gate,  Williarn  Magruder,  James  Mosher,  and  Robert  C.  Long,  of 
the  city  of  Baltimore,  authorizing  them  or  any  three  of  them  to  go 
upon,  walk  over,  survey,  lay  off  and  designate  one-third  part  of 
the  said  premises  as  and  for  the  dower  of  the  said  plaintiff  in  the 
same ;  and  that  the  said  commissioners  be  directed  in  the  com- 
mission to  make  out  a  plot  and  certificate  exhibiting  an  accurate 
description  of  the  third  part  or  dower  so  by  them  laid  out.  And 
if  they  shall  be  of  opinion,  that  the  said  messuage  and  lot  of  land 
cannot  be  divided,  in  the  manner  which  they  shall  so  specify, 
without  injury  to  the  same,  and  disadvantage  to  the  parties,  they 
shall  express  their  reasons  for  such  opinion,  state  all  circumstances 
they  may  deem  material,  and  proceed  to  designate  and  describe 
specially  in  what  other  manner  the  said  plaintiff  may  be  endowed 
of  the  said  property,  without  any,  or  with  less  injury  thereto,  and 


On  this  view  of  the  case,  I  should  deem  it  proper  to  confirm  the  retiirn  if  an 
examination  of  the  plot  had  been  made  according  to  the  rule  of  the  court ;  that  not 
being  the  case,  the  decision  will  be  postponed  till  March  term,  the  order  of  Decem- 
ber term  1819  being  still  in  force  as  to  the  survey  and  procuring  testimony  in  support 
of  the  objections  against  them. 


The  plots  having  on  motion  been  delivered  as  ordered,  to  the  solicitor  of  the  party, 
were  laid  before  the  examiner  general,  and  after  having  been  revised  by  him,  were 
again  returned  to  the  court.  After  which  the  commissioners  made  and  returned  a 
valuation  of  the  lands,  of  which  tliey  had  made  partition,  but  tlie  valuation  is  not 
mentioned  in  the  final  decree. 

26th  January,  1822. — Johnson,  CliaaccUor. — Decreed,  that  the  partition  so  made, 
&c.  &c.  "  And  for  the  purpose  of  making  an  equal  division  in  vidue,  it  is  further 
adjudged,  ordered  and  decreed,  that  Unit  Corse  and  wife,  pay  to  Rebecca  R.  Stewart, 
the  sum  of  one  thousand  and  ninety-seven  dollars,  thirty-three  and  one-third  cents, 
and  to  James  Polk  and  wife,  tlie  sum  of  five  hundred  and  thiity  dollars,  and  eighty* 
three  and  one-third  cents,  which  said  sums  of  money  are  adjudged  and  declared  to 
be  a  lien  on  lot  number  one  in  this  decree  mentioned.  Each  party  to  these  proceed- 
ings to  bear  an  equal  proportion  of  the  costs  of  tliese  proceedings." 


HANNAH  K.  CHASE'S  CASE.  235 

without  any,  or  with  less  disadvantage  to  all  concerned.  And  the 
said  commissioners  shall  make  return  of  their  proceedings  to  this 
court,  as  soon  as  may  be,  subject  to  its  further  order  upon  the 
same.  And  to  the  said  commission  there  shall  be  annexed  the 
usual  oath  of  office. 

And  it  is  further  decreed,  that  the  defendants,  Samuel  Chase, 
Matilda  Ridgely,  and  Ann  Chase,  pay  unto  the  said  Hannah  K. 
Chase,  the  plaintiff,  one-third  part  of  the  rent  reserved  by  the  lease 
to  the  said  James  Bryden,  from  the  19th  of  April  1811,  (the  day 
of  the  death  of  the  said  late  Samuel  Chase,)  until  the  expiration 
of  the  said  lease ;  and  further,  that  the  said  defendants  pay  unto 
the  said  plaintiff  one-third  part  of  the  rents  and  profits  of  the  said 
property,  in  the  proceedings  mentioned,  from  the  termination  of 
the  said  lease  until  the  time  of  the  said  plaintiff's  being  put  into 
possession  of  her  dower  in  the  said  premises. 

And  for  the  purpose  of  having  an  account  taken  of  the  said 
rents  and  profits,  it  is  further  decreed,  that  this  case  be  and  the 
same  is  hereby  referred  to  the  auditor,  with  directions  to  state  an 
account  or  accounts,  from  the  proceedings  and  proofs  in  the  case, 
or  from  such  other  testimony  as  may  be  laid  before  him  by  the  par- 
ties. And  it  is  further  ordered,  that  each  party  on  giving  to  the 
other,  or  her,  or  their  solicitor  three  days'  notice,  as  usual,  be  and 
they  are  hereby  authorized  to  have  testimony  taken  before  the 
commissioners  appointed  to  take  testimony  in  the  city  of  Balti- 
more, in  relation  to  the  rents  and  profits  of  the  premises,  to  be 
used  before  the  auditor  and  the  court ;  provided  it  be  taken  and 
filed  with  the  register  on  or  before  the  first  day  of  June  next. 


A  commission  was  issued  as  directed  by  this  decree,  and  the 
commissioners  in  their  return,  filed  on  the  29th  June,  1827,  state  a 
mode  in  which  it  was  practicable  to  have  the  dower  specifically 
assigned ;  but  they  say,  they  are  unanimous  in  the  opinion, 
derived  from  a  patient,  careful  and  f-autious  examination,  that  the 
location  would  tend  to  the  manifest  injury  and  disadvantage  of  the 
parties ;  the  property  having  been  expressly  constructed  for  a 
tavern,  &c.  &c.  But  the  defendants  liaving  appealed  from  this 
decree,  the  Court  of  Appeals  on  the  25th  July,  1828,  dismissed  the 
bill  with  costs. 


236  LINGAN  V.  HENDERSON. 


LINGAN  V.  HENDERSON. 

The  plaintiff  by  petition,  stating  on  oath  the  circumstances,  may,  before  the  coming 
in  of  the  answer,  obtain  a  commission  to  take  the  testimony  de  bene  esse  of  an 
aged  and  infirm  witness. 

An  onler  of  publication,  warning  an  absent  defendant  to  appear,  as  the  substitute 
for  a  subpana,  is  granted  as  of  course  ;  because  a  plaintiff  so  proceeds  at  his  peril: 
and  it  must  go  against  a  wife  as  well  as  her  husband,  or  she  w'ill  not  be  bound. 

If  the  statute  of  frauds  be  not  specially  relied  upon,  and  the  whole  contract  be 
not  expressly  denied  in  pleading,  the  party  can  have  no  advantage  of  the  statute, 
by  objecting  to  the  proofs,  or  in  any  other  way. 

Verbal  proof  may  be  received  to  corroborate  and  supply  omissions  in  a  'written 
contract,  or  to  contradict  the  usual  receipt  endorsed  on  a  conveyance,  wliich  is 
considered  as  evidence  of  the  lowest  order. 

The  plaintiff's  case  must  be  fully  shown  by  his  bill ;  its  defects  cannot  be  sup- 
plied from  the  other  proceedings ;  because  it  is  upon  the  case  so  stated  alone, 
that  the  court  can  grant  relief. 

The  special  prayer  must  be  for  such  relief  as  can  be  given ;  but  under  the  general 
prayer,  that  relief  will  be  given  which  is  best  suited  to  the  case,  though  not  orally 
asked  for. 

The  plaintiff  may  present  his  case  in  the  alternative ;  provided  the  alternatives  are 
both  of  them  such  as  are  cognizable  by  a  court  of  equity ;  and  are  not  so  framed 
as  to  allow  the  plaintiff  to  elude  any  rule  of  court. 

There  is  a  variety  of  cases  at  common  law  as  well  as  in  equity,  in  which  a  plaintiff 
may  obtain  relief  against  some  one  or  more  of  the  defendants,  although  he  may. 
totally  fail  against  all  the  others ;  but  where  one  of  two  or  more  defendants  makes 
a  defence  which  so  effectually  goes  to  the  whole  as  to  show,  that  the  plaintiff  had 
no  cause  of  suit,  nor  any  foundation  for  a  legal  complaint,  he  can  have  no  relief 
even  against  the  defendant  as  to  whom  the  bill  had  been  taken  ^ro  confesso. 

In  general,  the  answer  of  one  defendant  cannot  be  evidence  against  ahotlier ;  the 
exceptions  to  tliis  rule. 

In  what  cases  a  complainant  or  co-defendant  may  be  examined  as  a  witness  in  the  case. 

The  answer  of  the  wife  obligatory  upon  her. 

The  policy  of  the  statute  of  limitations,  its  nature,  in  what  way,  and  how  far 
applied  in  equity. 

Where  the  statute  of  limitations  is  relied  upon  by  one  in  bar  of  a  contract  by  which 
he,  with  others,  is  charged  to  have  been  bound,  it  cannot  be  taken  out  of  the  sta- 
tute by  any  acknowledgment  which  would  not  be  equivalent  to  a  renewment  of 
such  contract  by  all. 

More  precision  is  required  in  a  plea  than  in  a  bill. 

A  plea  of  (he  act  of  limitations  of  Ihree  years  is  not  applicable  to  an  equitable 
lien,  which  can  only  be  barred  by  a  lapse  of  twenty  years. 

This  bill  was  filed  on  the  29th  of  November,  1821,  by  Janet 
Lingan,  William  B.  Randolph  and  Sarah  his  wife,  George  Lingan, 
and  Elias  B.  Caldwell  and  Anne  his  wife,  against  Richard  Hen- 
derson, Sa)-ah  Henderson,  Janet  L.  Henderson,  and  David  English 
and  Lydia  his  wife. 

The  bill  states,  that  James  M.  Lingan,  in  May,  1807,  by  deed, 
duly  recorded,  conveyed  to  John  Henderson,  his  brother-in-law,  a 


LINGAN  V.  HENDERSON.  237 

parcel  of  land  lying  in  Montgomeiy  county,  being  about  four 
hundred  and  twenty  acres ;  that  some  time  after  John  Henderson 
executed  and  delivered  to  James  M.  Lingan  a  written  paper,  which 
is  in  these  words :  "  Received  of  James  M.  Lingan  a  deed  for 
four  hundi'ed  and  twenty  acres  of  land  lying  in  Montgomery  county, 
•which  is  to  be  accounted  for  by  me,  John  Henderson — -June  10th, 
1807."  Which  paper,  as  the  complainants  are  advised,  is  an 
acknowledgment  that  no  purchase  money  was  paid  at  the  time  for 
the  land,  and  that  it  was  an  engagement  to  pay  the  purchase  money 
for  the  same  if  there  was  a  sale,  or  if  not,  to  re-convey  it.  The 
bill  further  states,  that  the  plaintiffs  have  reason  to  believe,  that  a 
sale  was  made,  that  the  price  to  be  paid  for  the  land  was  about 
thirteen  dollars  thirty-three  and  a  third  cents  per  acre,  without 
interest  till  the  expiration  of  twelve  months  after  the  day  of  sale  ; 
but  of  this,  or  of  the  terms  of  the  contract,  if  any,  the  plaintiffs 
have  not  been  able  to  discover  any  positive  proof;  but  that  if  there 
was  no  sale,  there  could  be  no  consideration  for  the  deed,  and  the 
bargainee  held  the  same  in  trust  and  for  the  use  of  the  bargainor 
and  his  heirs.  That  James  M.  Lingan  and  John  Henderson  lived 
several  years  after  the  deed  was  executed,  and  Henderson  retained  the 
possession  and  took  the  profits  of  the  land  ;  and  the  plaintiffs  believe 
it  will  be  in  their  power  to  prove,  that  Henderson  acknowledged, 
several  years  after  the  execution  of  the  deed,  that  he  had  not  paid 
for  the  land  ;  that  he  was  not  able  to  pay  for  it ;  and  insisted,  that 
James  M.  Lingan  was,  by  the  contract,  to  take  it  back  in  case  he, 
Henderson,  was  unable  to  pay  for  it.  The  biU  further  states,  that 
some  years  afterwards  John  Henderson  departed  this  life  intestate, 
without  having  paid  any  part  of  the  purchase  money  for  the  land ; 
that  administration  upon  his  estate  had  been  granted  to  his  widow, 
the  defendant  Lydia,  who  has  since  intermarried  with  the  defendant 
David ;  that  the  administratrix  has  possessed  herself  of  the  personal 
assets  of  the  estate,  sufficient  to  pay  all  just  debts  against  it :  and 
that  John  Henderson  left  three  infant  children,  the  defendants 
Richard  Henderson,  Sarah  Henderson,  and  Janet  Lingan  Henderson^ 
w^ho  are  his  heirs  at  law.  That  James  M.  Lingan  is  dead  intestate, 
leaving  the  plaintiff  Janet  his  widow,  to  whom  administration  upon 
his  estate  had  been  granted,  and  three  children,  the  plaintiffs  Sarah, 
George,  and  Anne.  And  that  the  administratrix  of  John  Henderson 
disputes  the  claim  of  the  representatives  of  said  Lingan  against 
Henderson's  personal  estate ;  and,  his  children  being  infants,  no 
adjustment  can  be  had  with  them. 


238  LINGAN  V.  HENDERSON. 

Whereupon  it  is  prayed,  that  the  administratrix  of  Henderson 
may  be  compelled  to  pay  the  amount  of  the  purchase  money  for 
the  land,  with  interest ;  or  if  the  sale  shoulck,  not  be  admitted  or 
proved,  that  the  heirs  of  Henderson  may  be  compelled  to  re-convey 
the  land  to  such  of  the  plaintiffs  as  are  entitled  thereto ;  and  that 
the  plaintiffs  may  have  such  further  and  other  relief  as  to  the  court 
shall  seem  meet  and  consistent  with  equity.  And  forasmuch  as  the 
defendants  were  all  of  them  non-residents,  the  plaintiffs  prayed  an 
order  of  publication,  which  was  passed  accordingly,  directing  the 
defendants  to  be  warned  to  appear  on  or  before  the  29th  day  of 
May  then  next. 

The  plaintiffs,  by  their  bill,  filed  on  the  15th  of  December,  1821, 
in  this  case,  alleged,  that  Henry  Waring,  of  Washington  county,  in 
the  District  of  Columbia,  was  the  only  person  by  whom  they 
expected  to  be  able  to  prove  their  claim  ;  that  he  was  then  advanced 
in  life,  and  if  deprived  of  his  testimony,  they  were  apprehensive 
that  they  would  not  be  able  to  establish  their  claim.  They,  there- 
fore, prayed,  that  a  commission  might  be  issued  to  perpetuate  his 
testimony,  and  that  it  might  be  issued  to  James  Dunlop,  jun'r,  John 
Marhury,  J.  J.  Stiill,  and  Joseph  Brewer,  and  for  such  other  relief,  &c. 
Annexed  to  this  bill  there  was  an  affidavit  of  the  truth  of  the  facts 
stated  in  it,  made  before  an  assistant  judge  of  the  Circuit  Court 
of  the  United  States  for  the  District  of  Columbia ;  and  a  certificate 
of  the  Secretary  of  State,  that  he  was  at  the  time  an  assistant  judge. 

loth  December,  1821. — Johnson,  Chancellor. — Issue  the  com- 
mission as  prayed,  (a) 


The  testimony  of  the  witness  was  taken  and  returned  accord- 
ingly ;  but  as  the  testimony  of  this  same  witness  was  afterwards 
regularly  taken,  it  is  unnecessary  here  to  take  any  further  notice 
of  this  examination  de  bene  esse. 

The  defendants  David  English  and  wife,  on  the  8th  of  May, 
1822,  filed  their  answer,  which  sets  out  in  these  words :  "  The 
answer  of  David  English,  and  Lydia  English  his  Wife,  formerly 
Lydia  Henderson,  administratrix  of  John  Henderson,  to  the  bill  of 
complaint  of  Janet  Lingan  and  others.     The  said  defendant  saving 

(a)  Rymer  v.  Dulany — 17S7. — Petition  for  a  commission  de  bene  ease,  stating 
that  the  petitioners,  the  plaintiffs,  were  in  want  oftlie  testimony  of  Ahraliam  Cream, 
of  Frederick  countj',  who  was  a  material  witness  for  the  petitioners  in  the  said  cause, 
and  who  was  ahout  eipihty  years  of  age,  and  sick  and  impotent.  Granted. —  Chan. 
Pro.  lib.  S.  II.  II.  Iclt.  C.fol.  296. 


LINGAN  V.  HENDERSON.  239 

and  reserving  to  herself  now,  and  at  all  times  hereafter,  all  and  all 
manner  of  benefit  and  advantage  of  exceptions  to  the  manifold 
uncertainties  and  imperfections  in  the  complainant's  said  bill  of 
complaint  contained,  for  answer  thereunto,  or  to  so  much  thereof  as 
materially  concerns  these  defendants,  to  make  answer  unto  the  said 
defendant  Lydia  English,  answereth  and  saith,  that  she  admits," 
that  James  M.  Lingan,  by  deed  bearing  date  on  the  8th  of  May, 
1807,  conveyed  to  John  Henderson  the  tract  of  land  as  mentioned 
by  the  plaintiffs ;  that  John  Henderson  died  intestate  leaving  the 
heirs,  and  that  administration  was  granted  on  his  estate  as  stated 
by  the  plaintiffs  ;  but,  that  no  final  account  hath  been  passed,  by 
which  she  can  ascertain  whether  the  personal  assets  of  the  intestate 
are  sufficient  to  pay  all  just  debts  against  his  estate.  She  further 
alleges,  that  about  the  first  of  December,  1798,  James  M.  Lingan, 
being  possessed  of  a  grist  and  saw-mill,  and  other  improvements, 
and  of  land  adjacent,  agreed  with  John  Henderson  to  carry  on  the 
same  in  partnership  ;  which  Jolin  Henderson  carried  on  from  that 
time  until  some  time  about  the  year  1807  ;  by  which  considerable 
profits  were  made,  which  came  to  the  use  of  James  M.  Lingan  in 
his  lifetime  ;  that  Richard  Llenderson,  the  father  of  John  Henderson, 
died,  leaving  five  children,  Janet,  the  wife  of  James  M.  Lingan, 
John  Henderson,  Sarah  Henderson,  Arrianna  Sims,  and  Ann  Hen- 
derson ;  and  was  at  the  time  of  his  death  possessed  of  a  large  real 
and  personal  estate ;  upon  which  James  J\L  Lingan  and  John  Hen- 
derson  took  out  letters  of  administration  of  the  personal  estate 
jointly ;  that  James  M.  Lingan  had  possession,  under  those  letters, 
of  all  the  intestate's  personal  estate ;  collected  the  whole  of  the 
debts,  and  enjoyed  the  benefit  of  the  commissions  allowed  for 
administering  the  estate,  which  amounted  to  a  considerable  sum. 
The  defendant  Lydia  further  answering,  says,  that  John  Henderson 
has  never  yet  received  any  part  of  what  he  was  entitled  to  from 
Richard  Hendersonh  estate,  but  that  the  same  has  remained  in  the 
"hdiaAs  oi -James  M.  Lingan.  She  admits  such  an  instrument  of 
writing  as  that  of  the  10th  of  June,  1807,  mentioned  in  the  bill, 
was  executed  by  John  Henderson;  but  she  understood,  that  the 
land  was  to  be  accounted  for  in  the  general  settlement  of  accounts 
between  them  at  the  price  for  which  they  had  agi-eed  ;  that  in  the 
settlement  of  the  account  was  to  be  included,  not  only  the  concerns 
of  the  partnership  in  which  they  were  concerned,  but  also  the  accounts 
of  the  administration  of  the  estate  of  Richard  Henderson,  and  tlie  pro- 
portionable share  of  that  estate  to  which.  John  Henderson  was  entitled. 


240  LINGAN  V.  HENDERSON. 

But  there  has  been  no  final  settlement  of  accounts  between  James 
M.  Lingan  and  Jolin  Henderson.  The  partnership  between  them 
was  dissolved  in  1807,  and  the  books  of  the  concern  delivered  to 
James  M.  Lingan^  as  surviving  partner,  after  the  death  of  John 
Henderson  in  1809,  for  the  purpose  of  collecting  the  debts  of  the 
partnership ;  that  John  Henderson  received  none  of  the  profits  of 
the  partnership ;  and  she  thinks  it  may  possibly  be  shewn,  that 
James  M.  Lingan  was  considerably  in  debt  to  the  concern.  The 
defendant  Lydia  further  answering,  says,  that  she  does  not  know 
what  price  was  agreed  on  between  Lingan  and  Henderson  for  the 
land  mentioned  in  the  deed ;  but  admits,  that  John  Henderson  had 
the  possession  and  enjoyed  the  profits  of  it  to  the  time  of  his  death, 
which  happened  on  the  27th  of  January,  1809  ;  that  she  does  not 
know  of  Henderson'' sti^cving  acknowledged,  after  the  execution  of 
the  deed,  that  he  had  not  paid  for  the  land ;  that  he  was  unable 
to  pay  for  it,  and  that  he  insisted  that  Lingan  was,  by  the  contract^ 
to  take  it  back  in  case  Henderson  was  unable  to  pay  for  it.  But  she 
admits  that  John  Henderson  and  James  M.  Lingan  died  as  stated 
in  the  bill,  and  that  the  plaintiflPs  claim  is  disputed  at  law  by  her 
as  administratrix.  The  defendant  David  English  saith,  that  he 
hath  no  knowledge  of  the  matters  charged  in  the  bill,  and  there- 
fore can  neither  admit  or  deny  them. 

It  appears  by  the  affidavit  subjoined  to  this  answer,  that  it  was- 
sworn  to  before  a  justice  of  the  peace  of  Washington  county,  in  the 
District  of  Columbia,  by  both  of  these  defendants,  David  English 
and  Lydia  his  wife ;  and  added  thereto  is  a  certificate  by  the 
clerk  of  that  county,  that  the  person  before  whom  the  oath  was 
taken,  was  at  the  time  duly  commissioned  and  qualified  as  a  justice 
of  the  peace.  After  the  coming  in  of  this  answer,  the  plaintiffs 
filed  a  certificate  of  the  clerk  of  the  editors  of  the  National  Intel- 
ligencer, annexed  to  a  printed  copy  of  the  order  of  publication, 
stating  that  it  had  been  published  as  required.  The  plaintiffs  tlien 
by  petition  prayed,  that  a  commission  might  be  issued  to  the  persons 
therein  named  by  them  to  take  testimony,  &c. 

2'dth  July,  1822. — Johnson,  Chancellor. — Ordered,  that  a  com- 
mission issue  to  the  persons  named  as  commissioners,  unless  the 
defendants  shall  name  and  strike  commissioners,  on  or  before  the 
20th  day  of  August  next. 


No  one  having  appeared  to  name  and  strike  on  behalf  of  the 
defendants,  a  commission  was  issued  as  directed,  on  the  8th  of 


LINGAN  V.  HENDERSON.  241 

October,  1822,  to  the  coiumissioners  named  by  the  plaintiiFs.  In 
pursuance  of  this  commission  the  parties  were  notified,  &c. ;  when 
Henry  Waring^  a  witness,  was  produced  and  sworn  on  the  part 
of -the  plaintiffs.  In  answer  to  the  first'  interrogatory,  he  says,  that 
he  knew  James  M.  Lingan  twentj--five  or  thirty  years  before  his 
death,  and  John  Henderson  upwards  of  twenty  years, 

2d  Interr.  Were  you  or  vrere  you  not  acquainted  with  the 
circumstances  relative  to  the  sale  of  a  tract  of  land  described  as 
a  part  of  a  tract  of  land  called  Zoar,  situate  in  Montgomery'  county, 
in  the  State  of  Maryland,  by  General  James  M.  Lingan  to  Jo/ui 
Henderson  ; — if  yea,  state  the  same  particularly,  whether  the  said 
tract  of  land  was  paid  for  by  the  said  Henderson^  what  was  the 
price  for  which  the  same  was  sold,  and  all  the  circumstances 
within  your  knowledge  relative  to  the  same  ? 

Answer,  That  a  short  time  after  Mr.  John  Henderson  purchased 
of  General  James  M,  Lingan  the  farm  he,  ]\Ir.  Henderson,  lately 
resided  on,  this  deponent  was  going  to  Georgetown,  and  at  the 
request  of  Mr.  Henderson,  mentioned  to  General  Lingan  that  Mr. 
Henderson  expected  to  pay  no  interest  for  two  years  from  the 
purchase.  General  Lingan  observed,  that  it  was  not  so  ;  one  year 
clear  of  interest  was  as  much  as  his  circumstances  would  justify, 
or  he  would  willingly  give  INIr.  Henderson  two  years.  This  depo- 
nent then  observed  to  General  Lingan,  there  was,  he  believed,  a 
misunderstanding  which  had  better  be  fully  explained.  On  this 
deponent's  return,  he  mentioned  to  Mr.  Henderson  what  had  passed 
between  General  Lingan  and  himself.  About  twelve  or  eighteen 
months,  as  well  as  deponent  can  recollect,  before  the  death  of  Mr. 
Henderson,  this  deponent  was  at  INIr.  Henderson"" s  house ;  this 
deponent  and  Mr.  Henderson  were  alone,  and  Mr.  Henderson 
observed  to  this  deponent,  that  he  should  not  be  able  to  pay  General 
Lingan  for  the  land ;  observing,  that  the  produce  of  the  farm  was 
small ;  that  General  Lingan  had  agreed  to  take  it  back,  if  he  found 
he,  Mr.  Henderson,  could  not  pay  for  it ;  and  that  he,  said  Hen- 
derson, would  certainly  move  to  the  back  country,  (Cumberland 
this  deponent  believes  was  the  place  mentioned,)  but  it  was  dis- 
agreeable to  Mrs.  Hendersmi's  connexions  to  leave  them.  This 
deponent  understood  from  Mr.  Llenderson  he  was  to  give  General 
Lingan  about  thirteen  dollars  and  one-third  of  a  dollar  per  acre,  or 
that  the  land  cost  him  about  that  sum  per  acre. 

3d  Interr.  Were  you  or  were  you  not  intimate  with  i\Ir.  Hen- 
derson^  and  had  frequent  conversations  with  him  on  the  subject  oi^ 

31 


242  LINGAN  V.  HENDERSON. 

the  purchase  of  said  land ;  and  whether  did  such  conversations, 
and  your  intimacy,  continue  down  to  the  time  of  Mr.  Henderson's 
death ;  if  yea,  state  whether  in  all  such  conversations  relative  to 
said  pwrchase,  you  understood  from  Mr.  Henderson,  the  said  land 
was  or  was  not  paid  for ;  or  whether  the  said  John  Henderson  con- 
sidered himself  in  debt  for  the  purchase  money  of  said  land  ? 

Answer.  That  he  lived  a  near  neighbour  to  Mr.  Henderson,  and 
was  very  intimate  with  him,  meeting  him  generally  two  or  three 
times  a  week,  when  this  deponent  was  in  the  neighbourhood ;  that 
Mr.  Henderson  was  in  the  habit  of  making  full  and  free  communi- 
cations with  this  deponent  relative  to,  his  affairs ;  they  had  frequent 
conversations  relative  to  said  purchase.  This  deponent  always 
understood  from  Mr.  Henderson,  that  said  land  was  not  paid  for, 
and  that  he,  Mr.  Henderson,  would  not  be  able  to  pay  for  said 
land.  This  deponent  never  understood  from  Mr.  Henderson,  that 
he  claimed  any  thing  from  General  Lingan,  except  what  he.  Gene- 
ral Lingan,  might  receive  from  his,  Mr.  Henderson's,  father's  estate. 

4th  Interr.  Did  you  or  did  you  not  hear  Mr.  Henderson  state 
any  thing  as  coming  to  him  from  the  mill,  which  he  and  General 
Lingan  held  in  partnership ;  if  yea,  state  the  same,  and  when  the 
partnership  in  said  mill  was  at  an  end  ? 

Answer.  That  he  understood  the  partnership  in  the  mill  ceased, 
when  General  Lingan  moved  to  Montgomery  county,  which  was 
about  the  time  Mr.  Henderson  went  to  live  on  the  farm  purchased 
of  General  Lingan.  The  proportion  of  the  profits  to  which  Mr. 
Henderson  was  entitled  as  partner  in  the  mill,  this  deponent  does 
not  know ;  he  is  under  the  impression,  from  his  own  observation, 
and  to  the  best  of  his  recollection  from  conversations,  that  Mr. 
Henderson  told  him  the  mill  had  made  little  or  nothing,  and  that 
little  or  no  profits  accrued  from  the  partnership. 

bth  hiterr.  Did  you  or  did  you  not  hear  Mr.  Henderson  state, 
that  he  had  purchased  property  for  his  own  use,  out  of  the  partner- 
ship funds  of  the  said  mill ;  if  yea,  state  what  ? 

Answer.  That  he  understood  from  Mr.  Henderson,  that  he  pur- 
chased a  negro  woman  and  child  from  the  partnership  fund. 

Qth  Interr.  Were  you  acquainted  with  the  handwriting  of  Mr. 
Henderson,  and  have  you  seen  him  write ;  if  yea,  state  whether 
the  paper  now  shewn  to  you  marked  A  is  in  the  handwriting,  and 
the  signature  thereto  in  the  handwriting  of  John  Henderson  ? 

Answer.  That  the  paper  marked  A,  (the  writing  of  the  10th 
June  1807,  set  forth  in  the  bill,)  now  shown  to  him  is  in  the  hand- 


LINGAN  V.  HENDERSON.  243 

writing  of  John  Henderson,  and  that  he  has  seen  the  said  John 
Henderson  write,  and  knows  his  handwriting. 

1th  Interr.  Do  you  or  do  you  not  know  whether  Mr.  Henderson 
drew  his  support  for  himself  and  family  during  his  residence  at  the 
mill,  and  during  the  continuance  of  the  partnership  abovemen- 
tioned  from  the  partnership  property  ? 

Answer.  That  he  believes  he  did ;  except,  that  he  has  heard 
Mr.  and  Mrs.  Henderson  say,  that  the  father  and  mother  of  Mrs. 
Henderson  had  frequently  sent  them  supplies  of  provisions. 

1st  Cross  Interr.,  by  defendant  David  English.  At  the  conversa- 
tions mentioned  by  you,  (in  your  answer  to  the  second  interroga- 
tory of  the  complainants,)  with  Mr.  Henderson  about  eighteen 
months  before  his  death,  was  not  Mrs.  Henderson,  now  Mrs.  Eng- 
lish, present,  and  did  not  said  conversation  grow  out  of  your  advis- 
ing Mr.  Henderson  to  purchase  an  adjoining  estate  then  for  sale  ? 

Answer.  That  he  does  not  recollect  or  believe,  that  Mrs.  Hen- 
derson, now  Mrs.  English,  was  present  at  the  time  of  said  conver- 
sation, or  that  it  grew  out  of  circumstances  as  mentioned  in  said 
interrogatory. 

8th  Interr.  on  the  part  of  the  plaintiffs.  Were  the  conversations 
you  had  with  Mr.  Henderson  (mentioned  in  your  answers  to  pre- 
vious interrogatories,)  respecting  the  interest  of  the  purchase 
money  for  the  land,  and  his,  Mr.  Henderson^s  inability  to  pay  for 
the  same,  previous  to  the  date  of  the  deed? 

Answer.  That  he  does  not  know  the  date  of  the  deed  ;  the  con- 
versation respecting  the  interest  was  previous  to  Mr.  Henderson's 
removing  on  the  land;  and  that  respecting  his  inability  to  pay  for 
the  land  after  his  removal  on  the  same,  and  about  eighteen  months 
before  his  death. 

Qth  Interr.  Was  or  was  not  Mr.  Henderson  put  in  possession  of 
the  farm  at  the  time  of  the  purchase,  and  has  he  or  his  heirs  con- 
tinued in  possession  ever  since  ? 

Answer.  That  the  farm  called  Zoar  was  included  with  the  mill 
in  the  partnership,  and  Mr.  Henderson  was  in  possession  of  both 
mill  and  farm  in  the  same  right  previous  to  the  purchase ;  after 
the  purchase  he  cultivated  the  farm  in  his  own  right,  and  sometime 
afterwards  removed  on  the  farm  with  his  family,  and  he  or  his 
representatives  have  continued  in  possession  ever  since. 

2d  Cross  Interr.  on  the  part  of  t/ie  defendants.  Do  you  know 
any  thing  of  John  Henderson"* s  being  employed  for  five  or  six  years 
by  General  Lingan  at  his  mill,  on  Seneca,  before  any  partnership 


244  LINGAN  V.  HENDERSON. 

was  entered  into  ;  was  he  of  expensive  habits ;  or  do  you  suppose 
he  saved  part  of  his  salary  ? 

Answer.  That  he  understood  from  Mr.  Henderson,  that  he  was 
at  the  mill  as  agent  for  General  Lingan  several  years,  but  how  long 
this  deponent  does  not  know ;  that  Mr,  Henderson  was  very  frugal 
in  his  dress,  and  in  all  respects  a  very  frugal  prudent  man ;  that 
this  deponent  has  understood,  that  his  salary  while  at  the  mill  was 
at  least  one  hundred  pounds  per  year. 

3d  Cross  Interr.  Were  you  acquainted  with  the  terms  of  the 
purchase  of  the  land  ^ 

Answer.  That  he  was  not  present  when  the  contract  for  the  land 
was  made ;  that  he  acquired  his  knowledge  of  the  purchase  of  the 
land  from  both  Mr.  Henderson  and  General  Lingan ;  that  Mr.  Hen- 
derson told  this  deponent  he  had  given  General  Lingan  a  memo- 
randum of  the  purchase  of  the  land,  which  this  deponent  under- 
stood was  the  paper  marked  A  before  referred  to ;  and  that  Mr. 
Henderson  and  General  Lingan  both  told  this  deponent  they  had 
done  their  business  very  loosely ;  that  they  had  great  confidence  in 
each  other;  that  the  deponent  understood  from  Mr.  Henderson, 
that  General  Lingan  had  given  him  a  deed  for  the  property,  and 
this  memorandum  was  the  only  paper  he  had  given  as  evidence  of 
the  purchase. 

Ath  Cross  Interr.  Do  you  know  how  General  Lingan  came  to 
make  a  deed,  and  have  dower  relinquished ;  is  it  not  usual  in 
Maryland  to  give  bonds  of  conveyance  when  land  is  sold  on 
credit  ? 

Ansivcr.  That  he  did  hear  some  reason  given  for  making  the 
deed,  but  he  can't  say  now  what  that  reason  was ;  it  was,  this 
deponent  understood,  to  answer  some  good  purpose  to  Mr.  Hen- 
derson  ;  it  is  usual  to  give  bonds  of  conveyance  where  land  is  sold 
in  Maryland  on  credit. 

bth  Cross  Interr.  Have  you  any  knowledge  of  General  Lingan' s 
drawing  supplies  for  his  family  provisions,  his  hay  and  feed  for  his 
horses  from  the  mill  and  farm  during  the  eight  years  of  the  partner- 
ship, from  1798  to  1807  ? 

Answer.  That  General  Lingan  drew  hay,  whiskey,  flour,  poul- 
try, and  perhaps  other  things  that  he  wanted,  from  the  mill  and 
farm  during  the  partnership  ;  that  this  deponent  does  not  know  how 
long  the  partnership  continued  ;  that  wheat  was  purchased  at  the 
mill ;  and  that  this  deponent  has  been  told  by  Mr.  Henderson,  that 
General  Lingan  furnished  funds  to  pay  for  it. 


LINGAN  V.  HENDERSON.  ^  245 

6^/i  Cross  Interr.  From  your  knowledge  of  the  land  when  Mr. 
Henderson  moved  on  it,  could  there  be  any  reasonable  prospect  of 
ever  paying  for  it  from  its  products  ? 

Answer.  That  he  cannot  say  from  his  knowledge  of  the  land 
whether  there  was  or  was  not  a  reasonable  prospect,  when  Mr. 
Henderson  moved  on  it,  of  paying  for  it  from  its  products ;  he 
thought  the  land  was  good  land  for  that  part  of  the  country ;  it 
required  improvement  before  it  could  be  cultivated  to  advantage. 

After  the  examination  of  the  witness  was  thus  closed,  the  soli- 
citor of  the  defendants  filed  with  the  commissioners  the  following 
objection  :  "  On  the  part  of  the  defendants  so  much  of  Mr.  Wa- 
ring''s  deposition  as  goes  to  prove,  by  the  parol  declarations  of  John 
Henderson  deceased,  any  promise  or  acknowledgment  concerning 
the  purchase  money  of  the  land  in  question  ;  especially  in  so  far 
as  it  goes  to  contradict  or  explain  the  receipt  of  J.  M.  Lingan  on 
the  deed  for  the  purchase  money ;  or  the  complainant's  exhibit  A, 
referred  to  in  said  deposition,  (purporting  to  be  said  John  Hender- 
son's receipt  for  the  deed,  dated  June  10th,  1807,)  is  objected  to  as 
inadmissible,  as  well  under  the  particular  provisions  of  the  statute 
of  frauds,  as  the  general  rules  of  evidence,  by  which  evidence  to 
contradict  or  vary  a  written  instrument  is  excluded." 

The  commission,  with  this  testimony  and  these  objections,  were 
returned,  and  filed  on  the  12th  of  July,  1824.  Some  time  after 
W'hich  the  plaintiffs  by  their  petition  stated,  that  they  had  by  mis- 
take alleged  in  their  bill,  that  all  the  defendants  were  non-residents, 
when  in  truth  the  defendant  Richard  Henderson  always  has  been, 
and  is  now  a  resident  of  Montgomery  coimty  in  tiiis  State. 
Whereupon  they  asked  leave  so  to  amend  their  bill  as  to  pray 
process  of  subpoena  against  him. 

16//i  January,  1826. — -Bland,  Chancellor. — An  order  of  publi- 
cation, such  as  that  prayed  for  by  the  bill  of  these  plaintiiTs,  is 
allowed  by  the  acts  of  assembly  only  as  a  substitute  for  a  subpoena 
in  certain  specified  cases,  which  are  thus  made  exceptions  to  the 
general  rule,  which  requires,  that  the  regular  process  of  the  court 
should  be  prayed  for  and  issued  against  all  who  are  to  be  called  in 
as  parties  and  defendants  to  the  suit.  Hence  it  must  appear  upon 
the  face  of  the  bill,  that  the  case  is  of  such  a  nature  as  to  autho- 
rize an  order  of  publication  warning  a  resident  defendant  to  appear, 
or  it  must  be  expressly  stated  in  the  bill,  that  the  parties  therein 
named  do  not  reside  within  the  State,  so  as  thereby  to  lay  a  proper 
foundation  for  praying  for  an  order  of  publication  wai'ning  tliem  to 


246  LINGAN  V.  HENDERSON. 

appear  and  answer.  Where  a  husband  and  wife,  who  neither  of 
them  reside  within  the  State,  are  proposed  to  be  made  defendants, 
it  is  necessary  that  she  should  be  warned  by  the  order  as  well  as 
her  husband,  otherwise  her  interests  cannot -be  bound. (a)  In  all 
cases  the  granting  of  such  an  order  of  publication  is  almost  as 
much  a  matter  of  course  as  the  issuing  of  a  suhpcena  ;  because  it 
is  conceived  that  the  plaintiff  proceeds  upon  it  at  his  peril,  for  if 
the  case  be  such,  or  the  defendant  be  not  in  fact  a  non-resident,  so 
as  to  authorize  such  an  order,  any  decree  w^hich  the  plaintiff  may 
thus  obtain  must  be  considered  as  utterly  void  in  point  of  fact. (6) 
These  plaintiffs  having  discovered  their  mistake,  do  well  therefore 
to  have  their  bill  amended  in  this  respect.  Let  the  amendment  be 
made  as  prayed. 

After  w^hich,  on  the  17th  of  November,  1826,  the  defendant 
Richard  Henderson  alone  filed  the  following  plea : 

''  This  defendant  by  protestation  to  all  the  discoveries  and  relief, 
in  and  by  the  said  bill  sought  from  or  prayed  against  this  defend- 
ant and  others,  doth  plead  in  bar,  and  for  plea  saith,  that  by  an  act 
of  assembly  made  and  passed  at  April  session  in  the  year  one 
thousand  seven  hundred  and  fifteen,  entitled,  "An  act  for  limita- 
tion of  certain  actions,  for  avoiding  suits  at  law,"  it  was  amongst 
other  things  enacted,  that  all  actions  of  trespass  quare  clausum 
fregit ;  all  actions  of  trespass,  detinue,  sur  trover^  or  replevin  for 
taking  away  goods  or  chattels  ;  all  actions  of  account,  contract, 
debt,  book,  or  upon  the  case,  other  than  such  accounts  as  concern 
the  trade  or  merchandize  between  merchant  and  merchant,  their 
factors  and  servants  which  are  not  residents  within  this  province ; 
all  actions  of  debt  for  lending,  or  contracts  without  specialty ;  all 
actions  of  debt  for  arrearages  of  rent ;  all  actions  of  assault^ 
menance,  battery,  wounding  and  imprisonment,  or  any  of  them, 
shall  be  sued  or  brought  by  any  person  or  persons  within  this  pro- 
vince, at  any  time  after  the  end  of  this  present  session  of  assem- 
bly, shall  be  commenced  or  sued  within  the  time  and  limitation 
hereafter  expressed  and  not  after ;  that  is  to  say,  the  said  actions 
of  account,  and  the  said  actions  upon  the  case,  upon  simple  con- 
tract, book  debt,  or  account,  and  the  said  actions  for  debt,  detinue, 
and  replevin  for  goods  and  chattels,  and  the  said  actions  for  tres- 


(a)  Martin  v.  Russell,  MS.,  22d  December,  1797.— (6)  Carew  v.  Johnston,  2  Scho. 
&  Lefr.  280. 


LINGAN  V.  HENDERSON.  247 

pass  quare  clausum /regit y  within  three  years  ensuing  the  cause  of 
such  action,  and  not  after ;  and  the  said  actions  on  the  case  for 
words,  and  actions  of  trespass  of  assault,  batter^',  wounding,  and 
imprisonment,  or  any  of  them,  within  one  year  from  the  time  of  the 
cause  of  such  action  accruing  and  not  after.  And  this  defendant 
saith,  that  neither  he  this  defendant,  nor  to  his  knowledge  or 
belief  the  said  John  Henderson  deceased,  this  defendant's  father, 
did  at  any  time  within  three  years  before  exhibiting  the  said  bill  or 
serving,  or  suing  out  process  against  the  defendant  to  appear  to  and 
answer  the  same,  promise  or  agree  to  come  to  any  account  for,  or 
to  pay,  or  any  ways  satisfy  the  said  complainants,  or  the  said 
James  M.  Lingan  in  the  said  bill  of  complaint  mentioned,  any  sum 
or  sums  of  money,  for  or  by  any  reason  or  matters,  transactions  or 
things  in  the  complainant's  said  bill  of  complaint  mentioned, 
charged,  or  alleged.  All  which  matters  and  things  this  defendant 
doth  aver  to  be  true,  and  is  ready  and  willing  to  maintain  and  prove 
as  this  honourable  court  shall  award ;  and  he  doth  plead  the  same 
in  bar  to  the  whole  of  the  said  bill,  and  doth  humbly  demand  the 
judgment  of  this  honourable  court  whether  he  this  defendant 
ought  to  be  compelled  to  make  any  further  or  other  answer  to  the 
said  bill." 

To  this  plea  there  was  subjoined  an  affidavit  of  its  truth  ;  but 
there  was  no  answer  in  its  support  denying  the  admissions  and 
acknowledgments  charged  in  the  bill.  The  plaintiffs  put  in  a 
general  replication  to  this  plea,  and  the  case  was  thus,  without  the 
defendants  Sarah  Henderson  and  Janet  L.  Henderson  having  appear- 
ed, set  down  for  final  hearing,  and  the  solicitors  of  the  parties  having 
been  fully  heard,  the  proceedings  were  submitted  to  the  Chancellor 
for  his  final  determination  upon  the  whole  case,  as  before  set  forth. 

Ath  May,  1827. — Blaxd,  Chancellor. — Having  come  to  the 
conclusion,  that  the  land  must  be  decreed  to  be  sold  for  the  pay- 
ment of  the  purchase  money,  it  is  therefore  ordered  that  this  case 
be  and  the  same  is  hereby  referred  to  the  auditor  to  make  a  state- 
ment of  the  purchase  money  now  due. 


On  the  next  day  the  auditor  reported,  that  he  had  found  due 
from  the  estate  of  John  Henderson  deceased,  to  the  estate  of  James 
M.  Lingan  deceased,  the  sum  of  $11,924  14,  with  interest  on 
$5573  33,  part  thereof,  from  that  time  until  paid. 

Wi  May,  1827. — Bland,  Chancellor. — In  whatever  way  this 
case  may  be  considered,  it  is  necessary,  in  the  outset,  to  dispose  of 


248  LINGAN  V.  HENDERSON. 

the  objections  which  the  defendants  have  thought  proper  to  make, 
and  have  returned  with  the  commission.  It  is  objected,  that  the 
parol  proof  is  inadmissible ;  first,  under  the  peculiar  provisions  of 
the  statute  of  frauds  ;  and  in  the  next  place,  on  the  ground,  that 
bj  the  general  rules  of  evidence  it  should  be  excluded. 

The  first  of  these  objections  is  not  made  to  the  competency 
of  the  witness,  or  to  the  regularity  of  the  manner  in  which  his 
deposition  has  been  taken,  but  to  the  grade  of  testimony  by  which 
the  plaintiffs  have  thus  proposed  to  sustain  their  case.  The  statute 
to  which  this  objection  refers,  allows  a  party  who  may  be  charged 
by  a  contract,  like  that  upon  which  these  plaintiffs  rely,  to  shield 
himself  from  imposition  and  fraud,  by  requiring  of  his  opponent 
some  unerring  written  evidence  of  such  contract.  Consequently, 
in  all  cases  to  which  the  statute  of  frauds  extends,  where  the 
defendant,  in  his  pleadings,  rests  upon  his  right  to  have  the  con- 
tract, by  which  he  is  so  proposed  to  be  charged,  authenticated  by 
written  evidence,  the  plaintiff  cannot  obtain  relief,  unless  he  sustains 
his  case  by  such  proof;  mere  parol  or  verbal  testimony,  however 
strong,  will  not  be  sufficient.  But  the  statute  of  frauds  was  intended 
for  the  benefit  and  protection  of  a  party  against  whom  a  claim  might 
be  made.  It  does  no  more  than  extend  to  such  a  person  a  privilege 
which  he  may  altogether  waive,  and  put  his  defence  upon  the 
merits  of  the  case,  as  they  may  be  shown  by  legal  proof  of  any 
grade  or  description  whatever. (6)  And  therefore  it  has  been  finally 
established,  that  if  a  defendant  makes  default,  or  makes  his  defence 
without  expressly  denying  the  whole  contract,  or  in  any  other  form, 
without  relying  upon  the  statute  of  frauds,  he  thereby  tacitly  waives 
its  benefit,  and  cannot  be  permitted  to  take  advantage  of  it  after- 
wards or  at  the  final  hearing ;  so  that  if  the  contract  should  be 
sufficiently  sustained  by  parol  proof,  the  court  will  grant  relief, 
although  written  evidence  of  no  part  of  such  contract  may  have 
been  produced. (c)  But  these  defendants  have,  none  of  them,  in 
any  form  of  pleading  expressly  denied  the  whole  contract,  and 
relied  upon  the  statute  of  frauds.  This  objection  cannot  be  con- 
sidered as  forming  any  part  of  those  allegations  upon  which  an 
issue  between  these  parties  has-been  or  might  have  been  joined. 
It  is  nothing  more  than  a  sort  of  exception  to  the  testimony  which 
has  been  improperly  foisted  in  with  the  return  of  the  commission. 


(6)  Buxton  V.  Marden,  1  T.  R.  SI.— (c)  Cooth  v.  Jackson,  6  Ves.  37;  Rowe  v. 
Teed,  15  Ves.  375  ;  Jones  v.  Slubey,  5  H.  &.  J.  383. 


LINGAN  V.  HEXDERSON.  249 

and  can  be  considered  at  most  as  standing  only  as  if  made  in 
argument  at  the  final  hearing.  But,  as  such,  it  is  wholly  inad- 
missible in  any  way  ;  and  particularly  for  the  purpose  of  excluding 
any  proof  merely  because  of  the  inferiority  of  its  grade,  or  because 
of  its  not  being  such  written  evidence  as  might  have  been  required 
had  the  statute  of  frauds  been  specially  relied  upon. 

In  the  next  place,  apart  from  the  statute  of  frauds,  the  admission 
of  this  testimony  is  objected  to  on  the  ground,  that  it  cannot  be 
received  in  so  far  as  it  goes  to  contradict  or  explain  the  receipt  of 
J.  M.  Lingan  on  the  deed  for  the  purchase  money,  or  the  memo- 
randum of  the  10th  of  June,  1807.  The  evidence  given  by  this 
witness  is,  however,  introduced,  not  to  contradict  or  vary  any  part 
of  the  entire  contract,  but  to  supply  deficiencies  and  to  prevent 
fraud,  by  shewing  that  of  which  the  deed  of  conveyance  says 
nothing,  and  to  corroborate,  explain  and  fortify  that  of  which  the 
memorandum  of  the  10th  of  June  speaks  ambiguously.  Taken  in 
this  point  of  view,  this  parol  proof  may  well  and  consistently  stand 
with  the  deed,  and  so  much  of  the  whole  contract,  as  has  been  actu- 
ally reduced  to  writing. (c?)  A  receipt,  not  under  seal,  although  it  be 
strong,  is  not,  in  all  cases,  conclusive  evidence  of  the  fact  ;(c)  but 
a  receipt  for  the  purchase  money,  such  as  this,  endorsed  by  /.  M. 
Lingan.,  the  grantor,  for  the  sum  of  five  dollars,  the  nominal  con- 
sideration, on  the  back  of  the  deed,  looking  to  the  usage,  in  such 
cases,  of  making  an  absolute  conveyance,  of  which  such  a  receipt 
is  a  mere  formal  part,  leaving  the  purchase  money  in  fact  unpaid, 
is  considered,  in  equity  at  least,  as  being,  in  itself,  evidence  of  the 
lowest  order. (jT)  This  second  objection,  as  well  as  the  first,  must 
therefore  be  totally  overruled. 

It  has  been  long  and  well  established  as  a  rule  of  law  and  equity, 
that  the  plaintiff  can  only  obtain  relief  upon  the  strength  of  his 
own  title  as  it  existed  at  the  time  of  instituting  his  suit,  and  not  on 
the  weakness  of  the  title  of  his  adversary,  or  the  imbecility  of  his 
defence,  (o-)  In  general,  if  the  facts  stated  in  the  bill  are  not  in 
substance  sufficient  to  entitle  the  complainant  to  the  relief  prayed, 

((i)  Joynes  r.  Statham,  3  Atk.  3S9 ;  B!a2;den  v.  Bradbear,  12  Vcs.  471 ;  Hartopp 
V.  Hartopp,  17  Ves.  191 ;  Co.  Litt.  222  b.  n.  2  ;  Pow.  Mort.  200.— (e)  Trisler  v.  Wil- 
liamson, 4  H.  &  McH.  219 ;  Hughes  v  O'Donnell,  2  H.  &,  J.  324 ;  4  Stark.  Ev.  1272. 
(/)  O'Neale  v.  Lodge,  3  H.  &  McH.  433;  Dixon  v.  Swiggett,  1  H.  &  J.  252; 
Higdon  1-.  Thomas,  1  H.  &  G.  145 ;  Knight  v.  Pechey,  Dick.  327 ;  Sug.  Yen.  &  Pur. 
.386  ;  Pow.  Mort.  1062;  Irvine  v.  Campbell,  6  Bin.  118;  Duval  v.  Bibb,  4  Hen.  & 
Mun.  113.— (§:)  Mitf.  PI.  141, 154, 232  ;  Barficld  v.  Kelly,  4  Russ.  355 ;  Watts  r.  Lind- 
sey,  7  Wheat.  161. 

32 


250  LINGAN  V.  HENDERSON. 

he  cannot  resort  to  the  answer  of  the  defendant,  the  proof  taken 
in  the  case,  or  any  extraneous  matter  to  supply  the  defect, (A)  for 
no  evidence  can  be  received  which  is  not  applicable  to  some  one 
of  the  material  allegations  of  the  bill;(z)  but  in  order  to  remove 
any  doubt  as  to  what  was  intended  by  any  indirect  or  ambiguous 
charge  in  it,  its  interrogating  part,  as  well  as  its  prayers  for  relief, 
may  be  material  and  proper  to  be  considered  for  that  purpose. (j) 

The  principal  facts  of  which  this  case  is  composed,  as  set  forth 
by  the  bill,  and  upon  which  alone  the  plaintiffs  can  have  any  claim 
to  relief,  are  few  and  clear.  They  are  these  : — Jaines  M.  Lingan, 
in  May  1807,  conveyed  four  hundred  and  twenty  acres  of  land  to 
John  Henderson,  in  fee  simple,  who  then,  or  at  any  time  after,  gave 
no  valuable  consideration  for  it,  but  having  obtained  possession, 
retained  it  until  his  death.  Which  land  Henderson  was  to  account 
for  with  Lingan,  either  by  holding  it  in  trust  to  be  reconveyed  to 
Lingan,  or  by  holding  it  as  a  purchase,  and  paying  for  it  at  the  rate 
of  thirteen  dollars  and  thirty-three  and  one-third  cents  per  acre,  with 
interest  thereon  commencing  one  year  after  the  day  of  sale ;  but 
which  purchase  money  has  not  been  paid :  of  which  facts  the 
plaintiffs,  having  no  positive  proof,  sought  a  discovery  from  the 
defendants.  Some  years  after  entering  into  this  contract,  Jolui 
Henderson  died  intestate,  leaving  a  considerable  estate,  which 
passed  into  the  hands  of  the  defendants  as  his  legal  representatives. 
James  M.  Lingan  also  thereafter  died,  leaving  the  plaintiffs  his 
legal  representatives.  These  are  all  the  material  facts  stated  in  the 
bill. 

After  a  plaintiff  has  thus  distinctly  set  forth  the  facts  of  which 
his  case  is  constituted,  shewing  it  to  be  one  which  may  properly 
be  brought  within  the  cognizance  of  a  court  of  equity,  he  may 
then  proceed,  in  his  bill,  to  specify  and  ask  for  that  kind  of 
relief  to  which  he  thinks  himself  entitled.  But  if  he  expressly 
specifies  the  relief  which  he  proposes  to  obtain,  and  prays  for  none 
other,  either  generally  or  specially  ;•  and  the  law  will  not  allow  the 
court  to  give  relief  of  that  kind,  or  the  peculiar  nature  of  his  case 
will  not  warrant  the  granting  of  any  such  relief,  then  he  cannot  be 
relieved  at  all,  unless  he  consents  to  amend  or  alter  the  prayer  of 

(Ji)  Hovenden  v.  Annesley,  2  Scho.  &,  Lefr.  638;  Kemp  ■y.  Pryor,  7  Vcs.  240; 
Wright  V.  Plumptre,  3  Mad.  481 ;  West  v.  Hall,  3  H.  &  J.  223.— (t)  Chicot  v.  Lequesne, 
2  Ves.317;  Gordon  v.  Gordon,  3  Swan.  472.— (J)  MuclUeston  v.  Brown,  6  Ves.  62  j 
Saxton  V.  Davis,  IS  Ves.  80-. 


LINGAN  V.  HENDERSON.  251 

his  bill ;  for  otherwise  it  must  be  dismissed.  But,  if  the  bill  prays 
generally  for  such  relief  as  is  suited  to  the  nature  of  the  case,  then, 
under  such  general  prayer,  the  court  may^  regardless  of,  or  without 
any  special  prayer,  grant  any  such  relief  as  may  be  allowed  by  law, 
in  consistency  with  the  nature  of  the  case,  whether  the  plaintiff 
asks  for  it  orally  or  not;(/i-)  and  even  although  it  should  be  more 
beneficial  to  him  than  that  which  he  has  specially  prayed  for ;(/) 
of  which  the  defendant  is  held  to  have  been  sufficiently  notified, 
and  is  presumed  to  have  been  prepared  to  meet.  For  it  is  in  many 
cases  as  much  upon  a  defendant  to  look  to  what  is  prayed  against 
him  as  to  what  is  stated. (??z)  ;^ 

These  plaintiffs  have  by  their  bill  made  to  the  court  three  distinct 
prayers ;  firsts  that  the  administratrix  of  John  Henderson  be  com- 
pelled to  pay  the  purchase  money,  with  interest;  secondly,  that 
the  heirs  of  Jolin  Henderson  reconvey  the  land ;  and  thirdly,  that 
they,  the  plaintiffs,  may  have  such  relief  as  to  the  court  shall  seem 
meet  and  consistent  with  equity.  The  two  first  of  these  prayers 
have  been  made  to  correspond  with  the  alternatives  of  their  case ; 
either  that  the  contract  between  James  M.  Lingan  and  John  Hen- 
derson was  to  be  considered  as  a  sale,  in  which  case  the  plaintiffs 
ask  for  the  payment  of  the  purchase  money,  or  that,  if  it  should  be 
treated  as  a  trust,  then  the  heirs  of  Henderson  should  be  ordered 
to  reconvey  the  land  to  the  heirs  of  Lingan.  But  as  the  peculiar 
nature  of  the  case  might  suggest  the  propriety  or  necessity  of 
granting  relief  in  some  other  than  either  of  those  two  specified 
modes,  they  have,  in  general  terms,  prayed  for  such  relief  as  may 
be  deemed  proper.  Consequently  the  plaintiffs  may  be  relieved  in 
one  way  or  other,  unless  there  should  be  found  to  be  something  in 
their  bill  to  prevent  it ;  or  unless  the  claim  of  these  plaintiffs  should 
appear  to  have  been  in  some  way  barred,  or  should  be  found  to  be 
not  sufficiently  authenticated  by  proof. 

This  case  had  its  origin  in  a  contract  between  James  M.  Lingan 
and  John  Henderson.  Contemplating  it  therefore  as  an  agreement 
between  them  alone,  as  now  living,  to  be,  as  stated  in  the  bill, 
either  a  conveyance  of  a  tract  of  land  in  trust  for  a  particular 
purpose,  and  then  to  be  reconveyed ;  or  as  an  actual  sale  of  so 
much  land  to  be  paid  for  at  a  stipulated  price,  still  it  is  one  entire 

(/c)  Beaumont  v.  Eoultbee,  5  Ves.  495. — (/)  Diirant  v.  Durant,  1  Cox.  58. 
(m)  Manaton  v.  Molesvvorth,  1  Eden,  26 ;  Roche  v.  Morgell,  2  Scho.  &  Left.  729 ; 
Polk  V.  Clinton,  12  Ves.  65 ;  Hiern  i-.  Mill,  13  Ves.  119;  Jones  v.  The  Parishes  of 
Montgomery,  Sic,  3  Swan,  208  ;  Wilkinson  v.  Beal,  4  Mad.  408  ;  Mitf.  PI.  38. 


i252  LINGAN  i>.  HENDERSON. 

indivisible  contract,  utterly  incapable  of  being  broken  up  into  dis- 
tinct parts.  The  subject  of  it,  taken  in  either  alternative,  may  be 
divided.  The  land  may  be  reconveyed  in  separate  parcels,  and 
the  purchase  money  may  be  satisfied  in  many  small  payments ;  but, 
yet  the  one  original  contract  covers  all,  and  can  exist  only  as  a 
whole.  The  parties  themselves  may  alter^  relinquish,  or  receive 
satisfaction  for  the  whole  or  any  part  of  it,  at  their  pleasure ;  but, 
to  the  court,  it  is  a  sacred  unalterable  v.'hole,  which  must  stand  or 
fall  together. 

A  plaintiff  cannot  be  permitted  to  put  his  case  in  the  alternative, 
so  as  to  evade  any  of  those  settled  rules  which  have  been  estab- 
lished by  the  court  for  the  protection  of  its  suitors  from  unreasonable 
vexation ;  as  by  giving  to  his  bill  such  a  disjunctive  frame  and 
alternative  prayers,  as,  that  it  may  be  treated  either  as  a  bill  of 
review,  or  as  a  bill  of  revivor  and  supplement,  so  as  thereby  to 
elude  the  protective  operation  of  those  ndes  by  which  a  party  is 
restrained  from  filing  a  bill  of  review  at  his  pleasure. (?i)  And  as  a 
plaintiff  must  state  a  clear  case  of  equitable  jurisdiction,  much  less 
can  he  be  permitted  to  call  on  the  court  to  act  upon  a  hypothetical 
bill  praying  relief,  either  at  law  or  in  equity ;  since  he  must  dis- 
tinctly determine  for  himself  whether  his  case  is  at  law  or  in 
equity. (o)  But  it  is  not  irregular  to  bring  a  bill  in  which  the  case, 
taken  in  any  way,  being  within  the  jurisdiction  of  a  court  of  equity, 
is  stated  in  the  disjunctive  or  with  two  different  aspects  ;  so  that 
if  the  plaintiff  fails  to  sustain  by  his  proof  the  one  alternative,  he 
may,  by  authenticating  the  other,  obtain  the  relief  he  seeks. Qj) 
Here,  however,  the  alternative  presented  to  the  court  is  that  of  a 
conveyance  in  trust ;  or  an  absolute  sale,  with  an  incident  equitable 
lien ;  so  that,  whether  the  plaintiffs  sustain  by  their  proof  the  one 
alternative  or  the  other,  they  have,  by  their  bill,  presented  a  case 
which,  without  invading  any  rule,  com.es  entirely  within  the  cogni- 
zance of  a  court  of  equity. 

But  the  originally  contracting  parties  were  both  of  them  dead 
when  this  bill  was  filed.  The  plaintiffs  are  the  legal  representatives 
of  Jnnies  M.  Lingan,  deceased ;  and  the  defendants  legally  repre- 
sent the  late  John  Henderson.  The  rights,  as  well  as  the  liabilities, 
under  this  contract,  have  thus  passed  into  other  hands  and  devolved 


(n)  Perry  r.  Phelips,  17  Ves.  176.— (o)  Edwards  v.  Edwards,  Jac.  Rep.  335. 
(p)  Cresset  v.  Kettleby,  1  Vern.  219;  Bennett  v.  Vade,  2  Atk.  325  ;  Jones  v.  Jones, 
3  Atk.  111. 


LINGAN  V.  HENDERSON.  -  253 

upon  other  persons.  The  plaintiffs  derive  their  right  to  the  thing 
in  controversy  from  James  M.  Lingan  ;  they  stand  exactly  in  his 
place,  and  can  all  of  them  together  claim  nothing  more  than  what 
might  have  been  demanded  by  him.  Any  one  of  them  may  assign, 
or  release  his  or  her  own  undivided  right,  so  far  as  it  extends,  with- 
out prejudice  to  the  others ;  which  transfer  would,  however,  only 
operate  so  as  to  substitute  the  assignee  for  the  assignor ;  and  con- 
sequently this  contract,  as  stated  in  the  bill,,  is  as  entire  and  as 
utterly  indivisible,  as  these  plaintiffs  have  succeeded  to  it,  as  it  wag 
in  the  hands  of  James  M.  Lingan,  the  originally  contracting  party'. 
Then,  on  the  other  hand,  the  liability  to  which  John  Henderson 
was  subject,  by  this  contract,  has  devolved  upon  these  defendants 
as  his  legal  representatives.  Considering  it  as  a  conveyance  in 
trust,  his  administratrix  is  liable  for  the  rents  and  profits,  as  for  so 
much  personalty,  gathered  by  her  intestate  from  the  real  estate 
which  had  been  so  conveyed :  and  his  heirs  are  liable ;  because 
that  real  estate  itself  has,  by  operation  of  law,  been  cast  upon 
them.  In  the  other  alternative,  considering  this  contract  as  a  bar- 
gain and  sale,  Henderson'' s  administratrix  is  liable,  as  the  holder  of 
his  personal  estate,  for  the  purchase  money  as  one  of  his  debts,  for 
the  payment  of  which,  that  part  of  his  estate  is  primarily  liable  ; 
and  his  heirs  are  liable,  because  the  real  estate  itself,  encumbered 
with  an  equitable  lien  for  the  payment  of  the  purchase  money,  has 
passed  into  their  hands  ;  and  also  because  of  any  other  real  estate 
of  the  intestate  which  may  have  descended  to  them,  in  case  his 
personal  estate  may  be  found  insufficient  to  pay  his  debts.  But,  it 
must  be  recollected,  that  the  liability  of  each,  and  of  all  of  these 
defendants  is  only  in  respect,  and  to  the  extent  of  the  assets  which 
may  have  come  to  their  hands  from  the  deceased  contractor,  who 
they  thus  far  and  no  farther  represent.  But  to  the  amount,  that 
may  be  necessary  to  give  to  the  plaintiffs  complete  and  entire  satis- 
faction, all  the  estate  of  JoJm  Henderson  deceased  in  the  hands  of 
these  defendants  is  liable,  and  no  part  of  it  can,  by  any  act  of  any 
one,  or  all  of  them  together,  be  disengaged  from  that  liability  with- 
out making  to  the  plaintiffs  a  full  and  entire  satisfaction.  The 
court  may,  in  some  cases,  like  this,  so  marshal  the  bearing  of  the 
liability,  provided  it  be  attended  with  no  delay  or  risk  to  the  plain- 
tiffs, as  to  place  its  burthen  equally  upon  every  part,  or  upon  that 
portion  of  the  estate  by  which  it  ought  first  to  be  borne ;  but  as 
every  part  of  the  estate  of  the  deceased  is  liable  for  the  whole  claim 
of  the  plaintiffs,  no  portion  of  it  can  be  discharged  until  they  have 


254  LINGAN  V.  HENDERSON. 

Veen  fully  satisfied.  Hence  it  is  clear,  that  this  contract  as  against 
these  defendants  is  as  absolutely  indivisible  and  incapable  of  being 
broken  up  into  separate  parts  by  them,  or  in  their  favour  by  the 
court,  as  it  was  against  John  Henderson  during  his  lifetime. 

It  appears,  that,  of  these  five  defendants,  David  English  and 
Lydia  his  wife,  alone  have  put  in  such  an  answer  as  the  bill  calls 
for ;  that  after  they  had  done  so,  and  the  bill  had  been  amended, 
the  defendant  Richard  Henderson  filed  a  plea  of  the  statute  of  limi- 
tations, to  which  answer  and  plea  the  plaintiffs  put  in  a  general 
replication  ;  and  that  the  order  of  publication  has  been  published 
as  required,  so  that  the  bill  may  now  be  taken  pro  confesso  against 
the  absent  defendants  Sarah  Henderson  and  Jaiiet  L.  Henderson. 
In  this  situation  the  case  has  been  brought  before  the  court  for  a 
final  decree  upon  the  whole  matter  in  controversy. 

The  defence  of  Lydia  English^  goes  to  the  whole;  because 
she  admits,  that  such  a  contract  as  is  stated  in  the  bill  was  actually 
made,  but  avers,  that  it  was  satisfied ;  in  others  words  she  con- 
fesses and  avoids  the  whole  charge ;  and  therefore,  if  her  matter 
in  avoidance  be  true,  the  plaintiffs  can  have  no  relief  against  her ; 
because  she  would  thus  shew,  that  the  whole  claim  had  been 
actually  satisfied.  The  defendant  David  English  is  passive ;  with- 
out expressly  denying  any  thing,  he  admits  nothing;  and  therefore, 
unless  the  plaintiffs  establish  their  claim,  as  set  fortli,  they  can  have 
no  relief  against  him  to  any  extent  whatever.  The  defendant 
Richard  Henderson  rests  his  defence  upon  a  plea  of  the  statute  of 
limitations.  This  defence  also  goes  to  the  whole.  It  admits,  that 
although  a  contract  may  have  been  made  as  alleged,  yet  it  has  been 
barred  by  the  lapse  of  the  prescribed  length  of  time ;  and  there- 
fore, if  this  plea  be  properly  applicable  to  the  case  and  true,  the 
plaintiffs  can  have  no  relief  against  this  defendant,  Richard  Hen- 
derson. But  the  defendants,  Sarah  Henderson  and  Janet  L.  Hen- 
derson, having  failed  to  answer,  the  bill  may  be  taken  pro  confesso 
against  them,  and  any  relief  may  be  awarded  to  the  plaintiffs  which 
can,  under  their  general  prayer,  be  sanctioned  by  the  nature  of 
their  case. 

Whence  this  important  question  necessarily  arises  ;  whether  the 
court,  in  any  suit  against  a  plurality  of  defendants,  where  any  one 
of  them  makes,  and  sustains  such  a  defence  as  goes  to  the  whole, 
can  pass  a  decree  against  any  other  of  them,  who  Jias  made  no 
such  defence,  or  as  against  whom  the  bill  might  otherwise  be 
taken  pro  conjesso  ? 


LINGAN  V.  HENDERSON.  255 

Although  the  pleadings  in  this  court  are  much  more  informajl 
and  loose  than  in  courts  of  common  law,  yet  they  must  be  sub- 
stantially sufficient  in  this  as  well  as  in  all  other  courts ;  for  other- 
wise the  tribunal  would  have  no  means  of  ascertaining  svhat  was 
the  real  nature  of  the  matter  in  controversy,  nor  of  applying  to  it 
the  rules  of  law  by  which  it  was  to  be  decided.  It  is  not  neces- 
sary, that  a  plaintiff  or  ai  defendant  should  here,  as  in  a  court  of 
common  law,  strictly  adhere  to  any  prescribed  form  of  stating  his 
cause  of  complaint,  or  ground  of  defence. (g')  But  it  is  in  all 
cases  as  indispensably  necessary  here,  as  in  a  court  of  common 
law,  that  the  plaintiff  should  set  forth  fully  and  substantially  a 
cause  of  action  or  ground  of  complaint  as  then  existing  at  the  time 
of  the  institution  of  his  suit ;  with  this  addition  here,  that  it  is  in 
some  essential  particular  such  a  case  as  comes  properly  within  -the 
cognizance  of  a  court  of  equity ;  for  if,  on  the  final  hearing,  the 
case  should  not  appear  to  be  one  of  that  description,  the  plaintiff 
can  have  no  relief,  and  the  bill  must  be  dismissed. (r)  If  it  appears 
upon  the  face  of  the  bill,  that  the  case  is  not  one  of  that  descrip- 
tion, the  defendant  should  demur ;  yet  if  he  fails  to  do  so,  the 
court  can  grant  no  relief,  but  must  order  the  bill  to  be  dismissed. (5) 
Although  the  case  presented  may  be  such  an  one  as,  if  true,  and 
the  bill  had  set  forth  the  whole  truth  and  nothing  but  the  truth, 
would  entitle  the  plaintiff  to  relief,  yet  if  the  defendant  shews,  by 
way  of  plea  or  answer,  that  there  are  other  facts  making  a  neces- 
sary component  part  of  it,  which  have  not  been  set  forth,  and 
which  give  to  it  an  entirely  different  complexion,  the  plaintiff  can- 
not be  relieved ;  because  it  is  thus  shown,  that  he  has  no  cause  of 
action,  nor  any  just  grounds  for  asking  relief  in  the  case  he  speci- 
fies. So  on  the  other  hand,  if  the  defendant  shews,  that  some  facts 
have  been  stated  which  in  truth  compose  no  part  of  the  case,  so  as 
to  give  to  it  an  equitable  character  which  does  not  belong  to  it,  the 
plaintiff  can  have  no  relief,  because  his  case  is  not  substantially 
that  upon  which  he  has  asked  it. 

Hence,  as  it  is  the  cause  of  action,  as  substantially  stated  in  the 
bill,  upon  which  alone  the  court  can  grant  relief;  and  as,  if,  upon 
its  face,  it  appears  to  be  one  of  which  the  court  cannot  take  cogni- 
zance ;  and  as,  if  the  facts,  thus  stated,  be  not  substantially  tbe 
whole  truth,  without  any  material   suppression    or   addition,  the 

(q)  Kemp  v.  Pryor,  7  Ves.  245.— (r)  Mitf.  PI.  44,  1.54.— (s)  Barker  v.  Dacie, 
6  Ves.  686.    The  King  of  Spain  v.  Machado,  4  Russ.  22.5. 


256  LINGAN  V.  HENDERSON. 

plaintiff  cannot  be  relieved  ;  so  likewise,  if  no  such  cause  of  action 
ever  did  exist ;  if  it  did  once  exist,  but  is  shewn  to  have  been, 
since,  and  before  the  institution  of  the  suit,  wholly  barred,  satis- 
fied, or  extinguished  in  any  way  whatever,  the  plaintiff  cannot 
have  any  relief;  because  it  appears,  that  when  he  instituted  his 
suit  he  had  no  cause  of  action,  no  just  ground  of  complaint  what- 
ever as  alleged.  For  it  is  a  fundamental  /principle  in  the  adminis- 
tration of  justice  in  whatever  form,  or  by  whatever  tribunal  it  may 
be  administered,  that  where  there  is  no  cause  of  complaint  there 
can  be  no  foundation  for  granting  relief  (i) 

But  however  self-evident  this  principle  may  appear  to  be,  when 
contemplated  in  relation  to  a  suit  brought  by  one  plaintiff  against 
no  more  than  one  defendant  for  relief,  upon  a  simple,  entire,  and 
indivisible  cause  of  suit ;  yet,  it  does  not  appear  to  have  been  so 
readily  and  distinctly  perceived  where  the  cause  of  action  has  been 
compounded  of  various  items  ;.  or  where  the  satisfaction  for  the 
cause  of  suit  is  asked  for  in  damages,  or  to  an  indefinite  amount  to 
be  ascertained  by  an  estimate  of  the  nature  and  extent  of  the 
injury ;  and  especially  w^here  that  complexity  has  been  increased 
by  the  relief  being  sought  from  a  plurality  of  defendants.  The 
cause  of  suit,  at  law  as  in  equity,  may  be  made  up  of  a  variety  of 
parts  joined  together  as  one  whole,  or  it  may  be  an  injury  which 
can  only  be  satisfied  by  some  pecuniary  equivalent ;  or  the  cause 
of  suit  may  be  the  right  to  a  subject  which  is  in  itself  divisible ; 
or  it  may  be  that  the  several  defendants,  although  interested  and 
connected  as  privies  and  parties,  are  yet  liable  only  disjunctively, 
or  in  separate  proportions. 

Thus  w^here  the  next  of  kin  of  the  deceased  filed  their  bill  to 
recover  their  respective  distributive  shares  of  the  surplus  of  certain 
portions  of  his  personal  estate,  alleging,  that  he  had  died  intestate 
as  to  those  portions  of  it,  and  on  the  hearing  it  being  shewn, 
that  he  had  died  intestate  only  of  his  silver  jilate,  the  plaintiffs  had 
relief  as  to  that,  but  as  to  the  rest  the  bill  was  dismissed.  The 
defence  made  and  sustained  going  to  a  part  only  of  the  subject 
claimed,  it  appeared",  that  the  plaintiffs  had  a  valid  cause  of  suit, 
and  were  therefore  relieved. (»)  So,  in  general,  if  a  man  brings  an 
action  for  two  things,  for  the  recovery  of  both  of  which  the  action 
will  lie,  but  on  the  trial  fails  to  sustain  his  claim  to  one  of  them  ; 


(0  Ri^rcway's  Case,  3  Co.  52;  Brace  r.  Taylor,  2  Atk.  253  ;  Piggott  v.  Williams, 
6  Mad.  95.— (u)  Sprigg  v.  Weems,  2  H.  k  McH.  266. 


LINGAN  V.  HENDERSON.  257 

yet  he  may  have  judgment  for  the  other,  his  right  to  which  he 
estahlislies.(t;)  Or  suppose,  that  as  a  cause  of  suit  the  plaintiff 
alleges,  that  he  has  a  right  to  a  hundred  acres  of  land  which  has 
been  withheld  from  him ;  there,  as  the  subject  in  controversy  is 
divisible  in  its  nature,  the  defendant  may  take  defence  for  only  a 
part,  or  he  may  defend  for  the  whole ;  but  if  the  plaintiff  estab- 
lishes a  title  which  covers  a  less  number  of  acres,  he  may  be 
relieved ;  because  so  far  he  shews,  that  he  has  a  sufficient  cause 
of  action.  Or  suppose  the  suit  to  have  been  brought  against  two 
or  more  defendants,  each  of  whom  makes  a  separate  defence,  and 
the  defence  of  one,  applicable  to  himself  alone,  shews,  that  he 
ought  not  to  be  charged  ;  and  the  others  fail  in  tlieir  defence ;  the 
plaintiff  may  have  his  entire  relief  against  them,  although  the  bill 
must  be  dismissed  as  to  the  one  who  had  successfully  defended 
only  so  far  as  he  himself  was  charged  ;(w)  because  no  defence 
going  to  the  whole,  and  showing,  that  the  plaintiff  had  no  cause 
of  action  having  been  estabhshed,  he.  may  be  relieved  as  against 
all  the  other  defendants  who  had  either  made  no  defence,  or  faded 
to  establish  either  any  such  general  defence  as  went  to  the  whole, 
and  to  show  that  the  plaintiff  had  no  cause  of  suit  whatever  ;  or 
any  such  particular  defence  as  went  to  show,  that  although  there 
might  be  such  a  cause  of  action  against  others,  yet  he,  that 
defendant,  could  not  be  charged  by  it. 

In  these  and  in  all  similar  cases,  where  the  cause  of  action  is 
made  up  of  several  distinct  items ;  or  in  so  far  as  the  subject  of  it 
is  divisible  in  its  nature  ;(j:)  or  where  it  bears  upon  the  several 
defendants  in  a  disjunctive,  separate,  or  limited  manner,  the  relief 
gi-anted  may  be  accordingly  for  the  whole  or  for  a  part  only  of  that 
which  is  the  subject  of  the  cause  of  suit;  or  it  may  be  granted 
against  all  the  defendants,  or  against  some  or  one  of  them  only,  or 
against  each  pro  rata,  or  in  different  proportions. (y)  But  in  all 
cases,  in  equity  as  well  as  at  law,  the  relief  is,  and  can  only  be 
granted,  because  of  its  having  been  admitted  or  established,  that 
there  is  and  was,  when  the  suit  was  instituted,  a  valid  and  existing 
cause  of  action,  of  which  the  court  might  take  cognizance,  and 
which  by  no  defence,  going  to  the  whole,  had  been  shewn  by  all, 
or  any  one  of  the  defendants  to  have  been  entirely  barred,  satisfied 
or  extinguished  in  any  way  whatever.     These   are  general  well 


{v)  (Godfrey's  Case,  11  Co.  45 ;  Gregory  v.  Moleswoith,  3  Atk.  627. — (lu)  2  Will. 
Ex'rs.  1218.— (.1)  Robinson  v.  Bland,  2  Burr.  1082.— (»/)  Mason  r.  Peter,  1  Mun.  437. 

33 


258  LINGAN  V.  HENDERSON. 

established  elementary  principles  by  which  all  courts  of  justice, 
as  well  those  of  common  law  as  of  equity,  are  governed.  They 
are  merely  modifications  of  the  one  great  fundamental  rule,  which 
declares,  that  in  so  far,  and  no  farther  than  there  is  a  cause  of  com- 
plaint can  there  be  any  foundation  for  relief. 

This  matter  is  thus  explained  and  exemplified  by  Lord  Coke : 
"  In  a  plea  personal  against  divers  defendants,  says  he,  the  one 
defendant  pleads  in  bar  to  parcel,  or  which  extendeth  only  to  him 
that  pleadeth  it,  and  the  other  pleads  a  plea  which  goeth  to  the 
whole,  the  plea  that  goeth  to  the  whole,  that  is,  to  both  defendants, 
shall  be  first  tried ;  and  of  this  opinion  was  Littleton  in  our  books, 
for  the  trial  of  that  goeth  to  the  whole ;  and  the  other  defendant 
shall  have  advantage  thereof,  for  in  a  personal  action  the  discharge 
of  one  is  the  discharge  of  both.  As  for  example,  if  one  of  the 
defendants  in  trespass  plead  a  release  to  himself,  which  in  law 
extends  to  both,  and  the  other  pleads  not  guilty,  which  extends 
but  to  himself;  or  if  one  plead  a. plea  which  excuses  himself  only, 
and  the  other  pleads  another  plea  which  goeth  to  the  whole,  the 
plea  which  goeth  to  the  whole  shall  be  first  tried ;  for,  if  that  be 
found,  it  maketh  an  end  of  all,  and  the  other  defendant  shall  take 
advantage  hereof,  because  the  discharge  of  one  is  the  discharge 
of  both.  But  in  a  plea  real  it  is  otherwise ;  for  every  tenant  may 
lose  his  part  of  the  lands.  As  if  a  praecipe  be  brought  as  heir  to 
his  father  against  two,  and  one  plead  a  plea  which  extendeth  but 
to  himself  and  the  other  pleads  a  plea  which  extends  to  both,  as 
bastardy  in  the  demandant,  and  it  is  found  for  him,  yet  the  other 
issue  shall  be  tried,  for  he  shall  not  take  advantage  of  the  plea  of 
the  other,  because  one  joint  tenant  may  lose  his  part  by  his 
misplea."(c) 

In  an  action  of  trespass  for  taking  certain  goods  and  chattels, 
against  two  defendants,  the  one  pleaded  a  special  justification,  and 
the  other  not  guilty  ;  upon  both  of  which  pleas  issue  being  joined, 
a  jury  was  sworn,  who  found  a  verdict  for  the  defendant  on  the 
special  plea,  and  found  the  other  defendant  guilty,  and  assessed 
damages  and  costs.  Upon  a  motion  in  arrest  of  judgment  it  was 
held,  that  if  the  one  defendant  justifies  by  the  gift  of  the  goods  so 
as  to  destroy  the  plaintiff's  title,  and  shews,  that  he  could  not  have 
cause  of  action,  which  is  found  accordingly  for  that  defendant, 
although  the  other-  defendant  be  found   guilty,  yet  no  judgment 

(z)   Co.  Litt.  125. 


LINGAN  V.  HENDERSON".  559 

shall  be  against  him,  because  it  appeared  to  the  court  the  plain- 
tiff had  no  cause  of  action,  (a) 

An  action  of  covenant  was  brought  against  two  for  not  building 
a  house  for  the  plaintiff  according  to  their  covenant ;  judgment 
was  against  one  by  default ;  the  other  pleaded  performance,  and  it 
was  found  for  him.  Wliereupon  it  was  moved  in  arrest  of  judgment, 
that  no  judgment  nor  writ  of  enquiry'  of  damages  could  be  against 
him,  against  whom  the  judgment  was  by  default ;  because,  although 
in  trespass,  one  may  be  guilty  and  the  other  not ;  yet  in  covenant, 
debt  or  other  contract  where  it  is  joint,  the  one  cannot  be  convicted 
without  the  other;  and  here  by  the  verdict  for  one  of  the  defend- 
ants, that  the  covenant  was  performed,  it  appeared,  that  the 
plaintiff  had  not  any  cause  of  action  ;  and  therefore  should  not  have 
judgment;  and  so  should  it  be,  although  the  defendant  against 
whom  the  judgment  was  by  default  had  confessed  the  judgment. 
It  was  also  resolved,  tliat  the  defendant  should  have  costs  on  the 
verdict  against  the  plaintiff,  for  now  it  was  a  verdict  against  him^ 
and  that  he  should  have  neither  costs  nor  damages  against  the 
other.(6) 

In  an  action  of  trespass  brought  by  Biggs  against  Benger  4' 
Greevfield  for  entering  his  close  and  taking  away  his  goods  and 
chattels,  judgment  was  given  against  Benger  by  default;  but 
Greenfield  as  to  the  force  and  arms  pleaded  not  guilty,  upon  which 
issue  was  joined ;  and  as  to  the  entry  and  taking  away  of  the 
goods  he  pleaded,  that  Benger  had  leased  to  the  plaintiff  the  close 
therein  mentioned  for  a  certain  rent,  which  being  in  arrear,  he,  the 
defendant  Greenfield^  took  the  goods  as  a  distress,  and  thereupon 
the  plaintiff  requested  and  gave  him  license  to  sell  the  goods,  and 
to  pay  the  money  arising  thereby  to  the  defendant  Benger  in  satis- 
faction of  his  rent,  which  was  done  accordingly.  Upon  which 
issue  was  also  joined;  and  a  jury  having  been  sworn  to  try  the 
issues  and  assess  damages  against  Benger^  they  found  a  verdict  on 
the  issues  for  the  defendant  Greenfield^  and  assessed  damages 
against  Benger.  Upon  a  motion  in  arrest  of  judgment  against 
Benger  it  was  held,  that  this  case  of  a  license  cannot  be  distin- 
guished from  a  gift  of  goods,  or  a  release  which  destroys  the  cause 
of  action  as  to  all  the  defendants  ;  and  therefore  the  judgment  was 
arrested  as  to  both.(c) 

(a)  Martin  v.  AylifTe,  Cro.  Jac.  \?,\.—{b)  Porter  v.  Harris,  1  Levintz,  63;  Mor- 
gan V.  Edwards,  6  Taunt.  394;  Weaver  v.  Prentice,  1  Esp.  N.  P.  C.  369.— (c)  Biggs 
c.  Benger,  2  Ld.  Eaymd.  1.372 ;   8  Mod.  217. 


260  LINGAN  V.  HENDERSON. 

Upon  this  general  rule,  that  the  shewing  in  any  way  whatever, 
that  the  alleged  cause  of  action  never  existed,  or  that  it  had  been 
extinguished,  furnishes  a  complete  answer  to  all  claim  to  relief,  it 
has  been  settled,  that  if  an  obligee,  by  his  will,  makes  one  of  the 
obligors  his  executor,  and  dies,  the  action  at  law  is  thereby  discharged 
as  against  all ;  because  there  being  at  law  but  one  duty,  extending 
to  all  the  obligors,  the  discharge,  or  suspension  of  the  action  as  to 
one,  extinguishes  it  as  to  all.(c/)  And  although  in  equity,  and  by 
the  act  of  Assembly,  the  debt  due  from  such  executor  is  to  be 
considered  as  assets  in  his  hands,  yet  the  principles  of  law  have 
not  been  altered  in  any  other  respect  whatever.(e)  If  there  be 
several  executors  they  may  plead  different  pleas ;  each  of  them 
may  put  in,  for  himself,  none  other  than  the  plea  of  plene  adminis- 
travit ;  and  as  such  a  defence  does  not  controvert  the  existence 
of  the  cause  of  action,  but  merely  denies  a  sufficiency  of  assets 
wherewith  to  satisfy  it ;  if  the  one  of  such  pleas  should  be  found 
for  and  the  other  against  him  who  pleads  it,  yet  the  plaintiff  may 
have  relief  against  that  one  executor,  although  his  suit  must  be 
dismissed  as  against  the  other,  (y)  But  if,  in  addition  to  such  a 
plea,  one  of  the  executors  should  plead  a  release,  or  rest  his  defence 
upon  any  matter  going  to  the  whole  cause  of  action,  and  it  should 
be  found  for  him,  the  plaintiff  must  be  barred,  and  can  have  no 
relief  wdiatever ;  although  the  other  executor  had  even  acknow- 
ledged the  action,  or  made  default ;  because  it  would  appear  upon 
the  whole  record,  that  the  plaintiff  had  in  fact  no  cause  of  action,  (o-) 

The  wife,  executrix  to  her  husband,  married  a  second  husband. 
A  bill  is  exhibited  against  them  to  discover  the  trust ;  the  husband 
and  wife  disagree  in  the  matter,  and  put  in  severally  their  answers ; 
the  husband  denied  the  trust,  but  the  wife  confessed  it.  The  cause 
proceeded  to  hearing,  and  the  plaintiff  proved  the  trust  only  by  one 
witness,  which  the  plaintiff  insisted  on  with  the  wife's  confession, 
to  be  sufficient ;  the  matter  being  but  in  that  wherein  she  was 
concerned  as  executrix.  But  the  bill  was  dismissed,  quia  -the  wife's 
answer  shall  not  bind  the  husband. (A)  But  upon  a  bill  brought 
against  husband  and  wife  for  lands  held  by  them  in  her  right,  the 
husband  having  made  default,  the  wife  got  an  order  to  answer 
separately ;  and  thereupon  answered,  setting  forth  a  title  to  herself 

{d)  Clieotham  v.  Ward,  1  Bos,&  Piil.  630;  2  Will.  Ex'rs.  812.— (e)  Berry  i>. 
Usher,  11  Ves.  87  ;  Simmons  v.  Gutteridge,  13  Vcs.  264  ;  1798,  ch.  101,  subch.  8, 
s.  20.— (/)  2  Will.  Ex'rs.  1218.— (g-)  Elwell  v.  Quash,  1  Stra.  20;  3  Bac.  Abr.  33; 
2  Will.  Ex'rs.  1193.— (//)  Anonymous,  2  Ca.  Cha.  39. 


LINGAN  V.  HENDERSON.  2gX 

of  the  inheritance.  It  was  held,  that  there  could  be  no  decree 
against  her ;  but  the  bill  was  taken  j^^'o  confesso  against  the  husband 
only,  and  he  Avas  ordered  to  account  for  all  the  profits  of  the  land 
received  since  the  coverture,  and  the  profits  which  should  be  received 
during  the  coverture,  &c.(i) 

Whence  it  appears,  that  in  equity  as  at  law,  where  the  defence 
made  by  any  one  defendant  extends  only  so  far  as  to  cover  nothing- 
more  than  the  interest  of  him  by  whom  it  is  made,  the  plaintiff  may 
yet  have  relief  if  he  establishes  his  claim  against  the  other  defend- 
ants ;  but  that  where  the  defence  made  by  one  defendant  goes  to 
the  whole  cause  of  complaint,  and  the  plaintiff  fails  to  establish 
his  case  in  opposition  to  such  defence,  he  cannot  be  relieved  in  any 
way  whatever,  although  his  claim  should  be  confessed  by  the  other 
defendants. 

In  a  case  where  Wliistler  had  given  his  note  to  JolUffe  for  the 
payment  of  $4500,  in  Turkey,  where  JolUffe  continued  to  reside 
some  time  before  his  return  to  England,  Whistler^  after  the  giving 
of  this  note,  made  his  will,  appointing  Pitt  his  executor,  and  died. 
Some  time  after  Pitt  having  come  to  England  and  qualified  as 
executor,  JolUffe  filed  a  bill  in  chancery  against  him,  and  some 
others,  the  creditors  of  his  testator,  for  an  account  of  tlie  assets 
and  for  the  recovery  of  this  debt.  The  defendant  Pitt  submitted 
to  do  as  the  court  should  direct ;  but  the  defendant  creditors 
insisted  the  plaintiff  was  bound  by  the  statute  of  limitations.  The 
Chancellor  inclined  to  the  opinion,  that  the  statute  of  limitations 
was  not  to  take  place.  The  time  till  JVJiistler^s  death  being  answered, 
and  the  executor  being  beyond  sea,  the  statute  of  4  and  5  Aniie, 
c.  16,  s.  19,  took  place,  which  saves  the  right  of  action  as  well 
where  the  debtor  is  beyond  sea  as  where  the  creditor  is  beyond  sea. 
Whereupon  the  case  was  referred  to  the  master  to  take  an  account 
and  to  allow  the  plaintiff's  claim,  &c.(j)  This  is  all  that  is  said 
by  the  court  in  relation  to  the  bearing  of  the  several  defences ; 
whence  it  is  evident,  that  had  not  JolUffe^s  claim  been  taken  out 
of  the  statute  of  limitations,  as  relied  on  by  only  a  part  of  the 
defendants,  he  could  have  had  no  relief,  even  although  the  executor 
had  submitted  to  do  as  the  court  should  direct. 

A  fejne  covert  before  her  marriage,  with  the  consent  of  her  then 
intended  husband,  conveyed  an  estate  to  her  separate  use,  and  after 
her  marriage  she  borrowed  ^£25  upon  her  bond :  ten  years  after- 

(i)  Ward  V.  Meatli,  2  Ca.  Cha.  173.— (>)  JollUfe  v.  Pitt,  2  Vein.  694. 


262  LINGAN  V.  HENDERSON. 

wards  she  made  her  will,  thereby  giving  several  specific  legacies, 
and  made  A  and  B  executors  ;  on  her  death  her  husband  possessed 
himself  of  moneys  which  she  left,  to  the  amount  of  .£24 ;  after 
which  the  obligee  in  the  bond  brought  a  bill  against  the  executors 
and  the  husband  ;  and  one  of  the  executors  confessed  assets  ;  but 
the  husband  insisted  upon  the  statute  of  limitations. 

Master  of  the  Rolls.  It  is  true,  that  the  bond  given  by  \he  feme 
covert  is  merely  void,  and  in  that  respect  differs  from  a  bond  given 
by  an  infant,  which  is  only  voidable.  It  is  likewise  true,  that  the 
defendant,  insisting  upon  the  benefit  of  the  statute  of  limitations 
by  way  of  answer,  shall,  at  the  hearing,  have  the  like  benefit  of  the 
statute  as  if  he  had  pleaded  it.  But  in  this  case,  all  the  separate 
estate  of,-  the  feme  covert  was  a  trust  estate  for  payment  of  debts, 
and  a  trust  is  not  -wdthin  the  statute  of  limitations.  From  whence 
it  seems  as  if  the  plaintiff  ought  to  be  at  liberty  to  prosecute  all  the 
defendants,  in  order  to  be  paid  out  of  the  separate  estate  left  by 
the  feme  covert,  to  which  purpose  such  part  of  the  separate  estate, 
as  is  undisposed  of  by  the  will,  ought  to  be  first  applied.  In  the 
next  place,  if  that  be  not  suflScient,  the  creditors  are  to  be  paid  out 
of  any  money-legacies  given  by  the  feme  covert ;  and  lastly,  sup- 
posing there  is  still  a  deficiency,  all  the  specific  legatees  ought  to 
contribute  in  proportion.  Neither  can  it  be  material, .so  as  to  excuse 
the  other  defendants,  that  one  of  the  executors  of  X\iQ  feme  covert 
has  admitted  assets  ;  for  he  might  admit  assets,  and  yet  have  none, 
nor  any  estate  of  his  own.  And  it  would  not  be  reasonable,  that 
this  should  prevent  the  plaintiff,  the  creditor,  from  prosecuting  the 
other  executor,  or  the  husband,  who  may  have  possessed  themselves 
of  part  of  the  separate  estate,  and  ought  to  be  responsible.  For 
which  reason,  let  all  the  executors  account  for  what  they  respec- 
tively have  in  their  hands  of  the  feme  coverVs  personal  estate,  or 
the  produce  thereof,  and  let  the  same  be  liable  in  the  order  afore- 
said, reserving  costs. (/c) 

From  this  case  two  points,  in  relation  to  the  matter  under  con- 
sideration, seem  to  have  been  treated  as  settled :  first^  that  a  plea 
of,  or  a  reliance  in  answer  upon  the  statute  of  limitations  by  one 
defendant  alone,  if  sustained,  would  be  a  sufficient  bar  of  the 
whole,  although  the  claim  should  be  admitted  by  all  the  other 
defendants ;  and  secondly,  that  the  confession  of  assets  by  one 
executor,  without  actual  satisfaction,  is  no  bar  to  a  recoveiy  against 

(7c)  Norton  v.  Turvill,  2  P.  Will.  141. 


LINGAN  V.  HENDERSON.  263 

the  other  executor;  because  until  the  entire  cause  of  suit  has  been 
barred  or  satisfied,  each  executor  is  liable  for  the  whole,  so  far  as 
he  may  have  assets.  And  so  upon  a  bill  of  revivor  against  several, 
although  but  one  of  the  defendants  by  his  answer  insisted,  that  he 
had  no  title  to  revive :  it  was  held,  that  the  plaintiif  must  at  the 
hearing  shew,  that  he  had  a  good  title  to  revive,  or  he  could  take 
nothing  by  his  suit.(/) 

A  bill  was  filed  in  the  Court  of  Chancery  of  New  York,  by  Morris 
and  Mowatt,  as  assignees  of  Sands,  a  bankrupt,  against  Clason 
and  Stanly.  From  which  case,  among  a  v<iriety  of  other  circum- 
stances, it  appears,  that  the  defendants  had  been  partners  in  trade, 
and  as  such  had  obtained  a  judgment  at  law  against  Sands,  and 
had  also  obtained  a  right  to  another  judgment  against  him  by 
assignment.  After  which  Sa?ids  became  a  bankrupt;  and  some 
time  before  the  institution  of  this  suit,  the  partnership  between  the 
defendants  had  been  dissolved.  The  bill  prayed  a  discovery  of 
what  was  due  to  the  defendants,  or  from  Clason  to  Sands,  &c. ;  that 
satisfaction  might  be  entered  up  on  the  judgments ;  and  that  an 
injunction  issue  to  restrain  the  defendants  from  proceeding  by 
execution,  &c.  The  defendant  Clason  put  in  his  answer  relying 
on  a  variety  of  facts  and  circumstances  in  his  defence,  &c.  Stanly, 
residing  out  of  the  State,  the  bill,  as  against  him,  was  taken  pro 
confesso,  for  want  of  appearance,  after  a  regular  advertisement  to 
come  in  and  answer.  Testimony  having  been  taken,  and  the  case 
heard,  it  was  decreed,  that  the  two  judgments  were  to  be  deemed 
lully  satisfied,  and  to  be  so  entered  accordingly.  From  this  decree 
Clason  appealed,  and  the  Chancellor,  in  assigning  the  reasons  for 
his  decree  to  the  appellate  court,  says,  speaking  of  the  circum- 
stance of  Clason  only  having  answered  and  made  defence  in  the 
Court  of  Chancery,  that  "  There  was  evidence,  that  the  copartner- 
ship between  Clason  and  Stanly  was  long  since  dissolved ;  and  the 
bill  having  been  taken  pro  confesso  against  Stanly,  which  entitled 
the  plaintiffs  to  a  decree  against  him,  and  the  proceedings  against 
the  defendant  Clason  concluding  to  the  same  point,  it  was  useless 
to  trace  what  might  have  been  the  effect  of  a  different  state  of 
things." 

The  judge,  with  whose  opinion  a  majority  of  the  members  of 
the  appellate  court  concurred,  among  other  things,  says,  in  relation 
to  the  matter  under  consideration  in  this  case — "  The  first  question 

(0  Harris  r.  Pollard,  3  P.  WjU.  343. 


264  LINGAN  V.  HENDERSON. 

which  I  have  chosen  to  consider,  is,  as  to  the  effect  of  the  bill's 
being  taken  pro  confesso  against  Stanly^  circumstanced  as  this  case  is. 
If  Stanly  was  the  sole  defendant,  or  had  distinct  rights,  I  agree 
that  his  default  in  appearing  and  answering  would  have  been  an 
admission  of  the  facts  charged  in  the  bill.  In  Davis  v.  Davis, 
2  Atk.  21,  liOrd  Hardwicke  says,  with  great  propriety,  that  the 
taking  a  bill  j)ro  confesso,  in  equity,  is  analogous  to  taking  the 
declaration  for  true,  where  the  plea  or  answer  of  the  defendant  is 
insufficient.  He  was  there,  however,  speaking  of  a  sole  defendant ; 
and,  I  believe,  not  a  case  can  be  found  in  which  it  is  insinuated, 
that  where  there  are  two  defendants  having  a  joint  interest,  and 
one  appears  and  answers,  and  disproves  the  plaintiffs  case,  that 
the  plaintiff  can  have  a  decree  against  the  other  who  had  made 
default,  and  against  whom  the  biU  was  taken  pro  confesso.  It  would 
be  unreasonable  to  hold,  that  because  one  of  the  defendants  had 
made  default,  the  plaintiff  should  have  a  decree,  even  against  him, 
when  the  court  is  satisfied,  from  the  proofs  offered  by  the  other, 
that  in  fact  the  plaintiff  is  not  entitled  to  a  decree.  Though  I 
have  not  met  with  cases  in  equity  to  the  point,  yet  pursuing  the 
analogy  between  proceedings  at  law  and  in  equity,  we  are  not 
without  veiy  clear  authority ;  for  it  is  a  well  settled  principle  of 
law,  that  in  actions  upon  contracts,  the  plea  of  one  defendant 
enures  to  the  benefit  of  all ;  for  the  contract  being  entire,  the  plain- 
tiff must  succeed  upon  it  against  all  or  none ;  and,  therefore,  if  the 
plaintiff  fails  at  the  trial  upon  the  plea  of  one  defendant,  he  cannot 
have  judgment  against  those  who  let  judgment  go  by  default. 
It  would  require  the  most  binding  authorities  to  induce  me  to  yield 
my  assent  to  such  a  proposition  as  that  set  up  by  the  respondent's 
counsel ;  and,  indeed,  the  result  would  be  extraordinary,  for  if  one 
defendant  entitled  himself  to  a  decree,  where  the  interest  is  joint 
and  inseparable,  a  decree  must  be  made  in  his  favour  as  to  a  moiety 
of  the  matter  in  issue,  and  against  the  other  who  made  default  for 
the  other  moiety ;  that  is,  the  plaintiff  would  get  one  half  of  a 
decree,  and  the  other  defendant,  the  other  half.  It  cannot  be  so  ; 
we  must  consider  Clason^s  defence  as  enuring  to  the  benefit  of 
Stanly.'' 

The  judge,  with  whom  the  minority  concurred,  says  in  relation 
to  this  matter,  "  the  two  judgments  are,  therefore,  in  force,  and 
entitled  to  priority  of  satisfaction.  I  think,  however,  that  the 
appellant  ought  not  to  be  allowed  more  than  a  moiety  of  these 
judgments.    For  it  appears  from  his  answer,  that  the  consideration 


LTNGAN  V.  HENDERSON.  265 

for  the  assignment  of  the  one  was  paid  by  Clasoii  and  Stanly.  And 
although  the  assignment  was  made  to  Clason  alone,  yet  he  must 
be  deemed  a  trustee  for  Stanly  as  to  a  moiety ;  the  other  judgment 
stands  in  the  name  of  Clason  and  Stanly.  They  are,  therefore,  to 
be  taken  as  joint  owners  of  both  judgments.  And  the  bill  having 
been  taken  pro  covfesso  against  Stanly^  is  an  admission,  on  his 
part,  of  satisfaction  so  far  as  his  interest  is  concerned.  The  answer 
or  defence  of  Clason  cannot  enure  to  the  benefit  of  Stanly ;  1  Caines'' 
Cas.  in  Err.  121.  I  have  not  met  with  any  case  in  the  books 
where  a  bill  has  been  taken  pro  confesso  against  one  only  of  seve- 
ral defendants.  But  in  order  to  give  the  force  and  effect  to  this 
default,  w^hich  is  contemplated  by  the  statute,  the  proceedings 
must,  thereafter,  be  considered  in  the  nature  of  separate  suits, 
especially  where  the  nature  of  the  controversy  is  such  as  to  admit 
of  distinct  consideration,  and  separate  relief.  Where  the  defence 
set  up  goes  to  the  essence  and  foundation  of  the  claim  made  by  the 
bill,  and  that  is  wholly  destroyed  by  the  party  appearing,  there  may 
be  some  difficulty  in  enforcing  the  decree  against  the  party  who 
has  suffered  the  bill  to  be  taken  pro  confesso.  But  in  the  present 
case,  w^e  may  consider  Clason  as  attempting  to  enforce  the  collec- 
tion of  a  debt  due  to  himself  and  his  co-partner,  when  his  co-part- 
ner has  acknowledged  satisfaction  as  to  his  claim.  If  Stanly  is  to 
be  considered  jointly  interested  with  Clason,  it  was  no  doubt  com- 
petent to  him  to  release  or  acknowledge  satisfaction,  so  far  as  his 
interest  is  concerned,  and  his  default  as  equivalent  to  such  acknow- 
ledgment ;  and  his  rights  are  to  be  viewed  in  the  same  light  as  if 
he  had  appeared  and  answered,  and  confessed  the  facts  stated  in 
the  bill.  No  injustice  is  done  to  Clason  ;  a  moiety  is  all  he  shews 
himself  entitled  to.  If  the  sole  and  exclusive  right  to  the  part- 
nership debts  has  been  transferred  to  him,  he  ought  to  have  shewn 
it.  This  answer,  it  is  true,  states  a  dissolution  of  the  partnership 
in  1803 ;  and  that  by  an  agreement  between  him  and  Stanly  all 
the  property,  debts,  and  effects  of  the  co-partnership  became  vested 
in  him  solelyi  The  dissolution  of  the  partnership  is  proved,  but 
tliere  is  no  evidence  of  the  agreement  in  relation  to  the  partner- 
ship concerns." 

Upon  which  the  Chancellor's  decree  was,  by  a  majority  of  the 
court,  reversed  in  toto ;  but  the  minority  proposed  to  reverse  it 
only  to  the  extent  of  Stanhfs  interest.  (;/i) 

(m)  Clasoa  v.  Morris,  10  John.  Rep.  524. 

34 


266  LINGAN  V.  HENDERSON. 

Whence  it  appears,  that  in  the  view  which  the  Chancellor  took 
of  this  case  he  had  deemed  it  entirely  useless  to  trace  what  might 
have  been  the  effect,  if  Clasoji  had  succeeded  in  establishing  his 
defence;  because  as  he  had  failed  to  do  so,  and  the  taking  of  the 
bill  pro  confesso  against  Stanly  concluded  to  the  same  point,  it  was 
entirely  unnecessary  to  say  how  far  Clason's  defence,  if  it  had 
been  established,  should  enure  to  the  benefit  of  Stanly,  notwith- 
standing his  default.  But  it  is  clear,  that  the  effect  of  a  valid 
defence  liaving  bfeen  made  by  one  defendant,  and  the  biU  hav- 
ing been  taken  pro  confesso  against  the  other,  was  necessarily 
involved  in  the  final  judgment  according  to  either  of  the  views 
taken  of  the  case  by  the  appellate  court.  And  from  what  was  said 
by  them  in  regard  to  the  general  principle,  that  where  one  of  two 
or  more  defendants  makes  a  defence  which  so  effectually  goes  to 
the  whole  as  to  shew,  that  the  plaintiff  had  no  cause  of  suit,  nor 
any  foundation  for  a  legal  complaint,  he  can  have  no  relief  even 
against  the  defendant  as  to  whom  the  bill  had  been  taken  pro 
cojifesso,  it  is  perfectly  manifest,  that  the  court  were  unanimous ; 
and  that  the  only  difference  of  opinion  among  them,  in  this  respect, 
was,  not  as  to  this  general  principle ;  but  how  far  the  case,  then 
before  them,  could  be  considered  as  one  in  which  the  whole  cause 
of  suit  had  been  met  and  repelled  by  the  defence  of  Clason.  The 
majority  of  the  court  held,  that  his  defence  did  embrace  the  whole, 
and  was,  therefore,  a  conclusive  bar  to  any  relief  as  well  against 
Stanly,  as  against  Clason.  But  the  minority  of  the  court  were  of 
opinion,  that  Clason^s  defence  did  not  properly  and  necessarily 
comprehend  any  thing  more  than  his  own  separate  claim  ;  because 
he  might  be  regarded,  in  that  case,  as  attempting  to  enforce  the 
payment  of  the  whole  of  a  debt  due  to  himself  and  his  partner, 
when  his  partner  had,  by  his  default,  which  was  equivalent  to  a 
release,  acknowledged  satisfaction  to  the  amount  of  his  share  of 
the  debt ;  and  therefore,  although  the  defendant  Clason  had  fully 
sustained  his  defence ;  yet,  as  his  claim  extended  no  further  than  to 
a  moiety  of  the  debt,  according  to  the  terms  of  the  partnership 
between  him  and  Stanly,  and  the  manner  in  which  it  had  been  dis- 
solved ;  the  plaintiffs  might  well  have  the  decree  affirmed  against 
Stanly  alone.  This  then  is  a  solemn  adjudication  in  equity  directly 
upon  the  point  in  question ;  and  it  is  a  decision  which  must  be 
admitted  to  have  great  claims  to  respect,  as  well  because  of  the 
sound  legal  reasoning  by  which  it  is  sustained,  as  because  of  its 


LINGAN  V.  HENDERSON.  267 

harmonizing  so  entirely  with  all  the  established  principles  of  law 
which  have  any  bearing  upon  the  same  subject. 

It  appears  then,  that  there  are,  at  common  law  as  well  as  in 
equity,  a  variety  of  cases  in  which  the  plaintiff,  either  because  of 
the  peculiar  nature  of  his  cause  of  action,  or  because  of  the  nature 
of  the  several  defences  made  to  it,  may  obtain  relief  against  some 
one  or  more  of  the  defendants,  although  he  may  totally  fail  in  his 
suit  against  all  the  others.  In  equity  this  more  frequently  happens 
than  at  law ;  but  in  all  cases,  it  arises  not  from  the  mere  manner 
or  form  of  proceeding,  but  from  the  substantial  nature  of  the  case 
itself,  or  of  the  defence  which  may  have  been  made. (71) 

In  all  cases  where  there  are  a  plurality  of  defendants,  they  are 
each  of  them  charged  as  such ;  because  of  their  having  an  interest 
in  or  being  jointly  or  otherwise  liable  to  the  alleged  cause  of  suit. 
Hence  it  is  in  general  true,  that  the  answer  of  one  defendant  can- 
not be  read  in  evidence  against  another ;  because  in  such  case 
there  is  no  opportunity  for  cross  examination  ;  and  also  because 
each  defendant,  considered  as  a  necessary  party,  must  have  some 
interest  in  the  event  of  the  suit ;  and  is,  therefore,  an  incompetent 
witness. (0)  But  there  are  exceptions  to  this  general  rule  ;  as  where 
the  defendant  against  whom  the  answer  is  proposed  to  be  read 
claims  under  him  who  made  it ;  for  a  defendant  cannot  deny  the 
title  as  thus  set  forth  by  him  under  whom  he  claims  ;(p)  or  Avhere 
the  defendants  are  partners  in  trade,  and  as  such  are  then  compe- 
tent to  bind  each  other  by  such  a  contract  as  that  of  which  they 
speak,(g')  So  too  in  the  peculiar  case  of  corporations,  one  or  more 
of  its  officers  may  be  made  co-defendants,  whose  answers  may  be 
received  against  the  body  politic  ;  and  so  likewise  as  to  arbitrators 
and  attorneys,  whose  answers  may  be  read  against  the  other  par- 
ties ;  and  this  from  necessity,  or  because  such  co-defendants  may 
be  converted  into  witnesses,  (r)  And  so  it  would  seem  at  common 
law  there  is  a  case  where,  from  necessity,  one  of  the  defendemls 
may  be  called  on  as  a  witness  to  testify  for  the  plaintiff  against  the 
co-defendants,  "  inasmuch  as  some  books  have  said,  that  though 
the  witness  named  in  the  deed  be  named  a  disseisor  in  the  writ, 
yet  he  shall  be  sworn  as  a  witness  to  the  deed. "(5) 

(a)  Royal  v.  Johnson,  1  Rand.  421.— (0)  2  Mad.  Cha.  441 ;  Fereday  v.  Wight- 
wick,  4  Russ.  114.— (p)  Field  v.  Holland,  6  Cran.  24;  Osbom  v.  U.  S.  Bank, 
9  Wheat.  832 ;  Jones  r.  Magill,  ante  177.— (5)  Clark  v.  Vanriemsdyk,  9  Cran.  156. 
(r)  Rybott  v  Barrell,  2  Eden,  133  ;  Dummer  v.  Corpo.  of  Chippenham,  14  Ves.  252. 
Le  Texier  v.  Anspach,  15  Ves.  164.— (s)  Co.  Lilt.  6. 


268  LINGAN  V.  HENDERSON 

But,  although  it  is  a  settled  rule  in  equity  as  well  as  at  law,  that 
no  one  can  be  a  witness  who  is  interested  in  the  event  of  the  suit ; 
yet,  as  it  is  often  proper  in  equity  to  make  persons  parties  to  the 
suit  who  have  no  substantial  interest  in  the  whole  subject  of  it;  or 
in  that  distinct  and  separate  part  of  it  as  to  which  they  may  be 
called  upon  to  testify, — as  W'here  a  bare  trustee  is  made  a  co-plain- 
tiff or  co-defendant ;  or  where  it  appears,  that  the  plaintiff  has  no 
claim  to  any  relief  whatever  against  one  or  more  of  the  defendants ; 
or  that  he  has  cause  of  suit  against  one  only  as  to  one  subject  and 
against  another  as  to  a  different  subject,  but  has  no  cause  of  suit 
against  them  all  jointly ;  unless  the  court  permits  the  disinterested 
co-plaintiff  or  co-defendant  to  be  examined  as  a  witness  for  the 
others  in  such  case, — the  really  interested  plaintiff  may  lose  his 
right ;  or  the  plaintiff  by  thus  making  two  or  more  persons  defend- 
ants to  his  suit  may,  by  that  sort  of  mechanism,  deprive  the  one 
defendant  of  the  benefit  of  the  othej's  evidence. (^)  And  therefore 
it  is  quite  common  in  chancery,  to  apply  by  petition,  to  have  one 
of  the  parties  examined  as  a  witness,  subject  to  all  just  exceptions  ; 
and  unless  the  interest  of  the  party,  so  proposed  to  be  examined, 
is  perfectly  apparent,  the  order  is  granted  almost  as  a  matter  of 
course,  leaving  the  objections  to  be  made  and  considered  when  the 
testimony  is  brought  in.(«)  But  where  a  defendant  has  been 
examined  and  received  as  a  witness  to  the  whole  cause  of  action, 
the  bill  as  to  him  must  be  dismissed  with  costs ;  because  the  plain- 
tiff, by  calling  for  and  using  his  testimony,  thus  virtually  admits, 
that  he  has  no  cause  of  complaint  against  hira.(t') 

Hence  it  may  be  assumed  as  a  general  rule,  that  where  there 
must  be  a  decree  against  all  the  defendants  because  of  their  joint 
or  blended  interests,  there  no  one  of  them  can  be  examined  as  a 
competent  witness  in  the  case  ;  and  upon  the  same  ground  of  the 
indivisible  and  inseparable  nature  of  their  interests,  the  defence  of 
any  one,  which  shews,  that  the  whole  of  such  alleged  joint  or 
blended  interest,  never  existed  or  has  been  barred  or  satisfied,  must 


(t)  Nightin2;al9  v.  Dodd,  Mosl.  229  ;  Amb.  583  ;  Murray  v.  Shadwell,  2  Ves.  & 
B.  404.— (u)  Casey  v.  Beachfield,  Prec.  Ch.  411 ;  Piddock  v.  Brown,  3  P.  Will.  2SS. 
Meadbury  v.  Isdall,  9  Mod.  43S ;  Gibson  v.  Albert,  10  Mod.  19  ;  Dixon  v.  Parker, 
2  Ves.  219  ;  Man  v.  Ward,  2  Atk.  22S;,  Barret  v.  Gore,  3  Atk.  401 ;  Armiter  v. 
Swanton,  Amb.  393 ;  Franklyn  v.  Colquhoun,  16  Ves.  219 ;  De  Tastet  v  Bordenave, 
Jacob,  516;  Fereday  v.  Wightwick,  4  Russ.  114;  Hougham  v.  Sandys,  2  Sim.  & 
Stu.  221.— (tj)  Thompson  v.  Harrison,  1  Cox.  344 :  Weymouth  v.  Boyer,  1  Ves.  jun. 
416  ;  2  Fow.  Ex.  Pra.  85,  86. 


LINGAN  V.  HENDERSON".  269 

necessarily  preclude  aU  relief  against  any  one  of  them.  But  where 
it  appears,  that  the  cause  of  suit  against  each  arises  out  of  distinct 
subjects  ;  there,  as  each  defendant  is  a  competent  witness  as  to  the 
subject  in  which  he  is  not  interested,  so  there  may,  in  respect  to 
such  different  subjects,  be  separate  decrees  against  each. 

But  here  it  has  been  shown,  that  the  legal  representatives  of  John 
Henderson  are,  all  of  them,  liable  to  be  charged  by  the  contract  set  out 
in  the  bill,  to  the  extent  of  the  assets  which  have  come  to  their 
hands  respectively.  And  that,  although  each  of  them,  to  the  extent 
of  those  assets,  is  so  entirely  liable  to  the  plaintiffs  as  to  entitle 
them  to  any  relief,  under  the  general  prayer  of  their  bill,  that  may 
be  deemed  most  for  their  benefit ;  yet  these  defendants,  as  against 
each  other,  have  an  equitable  claim  to  contribution ;  and  therefore, 
as  among  them,  the  court  may,  if  called  upon,  by  a  decree  over, 
so  adjust  the  burthen  as  to  cause  it  to  bear  equally  or  in  due  pro- 
portion upon  each  of  them.(w) 

Consequently,  as  this  cause  of  suit  is  in  its  nature  indivisible, 
and  the  same  against  all  of  these  defendants ;  and  as  no  one  of 
them  has  even  set  up,  much  less  sustained  any  separate  defence, 
which,  like  that  of  a  plea  of  pleiie  administravit  by  one  of  two  or 
more  executors,  would  go  to  show,  that  he  could  not  be  charged 
in  connexion  with  the  other  defendants,  the  interests  of  all  must 
be  bound  by  the  decree,  unless  it  shall  be  found  from  the  defence 
of  any  one,  either  that  the  whole  cause  of  suit  never  existed,  or 
that  it  has  been  barred  or  satisfied.  It  now,  therefore,  becomes 
necessary  to  consider  the  nature  of  the  defences,  which  have  been 
made  to  this  bill  of  complaint. 

From  the  general  character  of  the  answer  of  English  and  wife, 
and  from  the  express  and  distinct  allegations  in  the  body  of  it,  and 
also  from  its  ha\-ing  been  received  and  replied  to  by  the  plaintiffs ; 
the  court  may  now  regard  it  as  the  separate  answer  of  each,  as 
much  so  as  if  the  wife  had  obtained  an  order  expressly  allowing 
her  to  answer  separately.  A  wife  cannot,  under  any  circumstan- 
ces, be  a  witness  for  or  against  her  husband ;  and  for  that  reason, 
he  can  in  no  case  be  bound  by  any  thing  she  sets  forth  in  her 
answer,  (a:)  Consequently,  whether  this  is  to  be  considered  as 
altogether  a  joint  answer;  or  as  being  in  fact  two  regular  and 
distinct   answers    of  these   defendants,  it    is  clear,  that  nothing 


{w)  Meadbiiry  v.  Isdall,  9  Mod.  43S  ;  1  JMad.  Chan.  233.— (j)  Le  Tcxier  v. 
Anspack,  15  Ves.  165. 


270  LINGAN  V.  HENDERSON. 

which  Lydia  has  said  can  be  allowed  to  affect  the  interest  of  her 
husband  David.  But  in  the  body  of  this  answer,  which  has 
been  properly  sworn  to  by  her  as  well  as  her  husband,  she 
expressly  declares,  that  as  to  various  circumstances  as  therein 
set  forth  by  way  of  defence,  she  speaks  for  herself  alone,  as  the 
administratrix  of  the  deceased  Jo/m  Henderson.  Where  a  bill 
was  filed  by  a  legatee  against  husband  and  wife,  she  being  the 
executrix,  and  after  they  had  answered  he  died ;  it  was  held,  that 
she  was  bound  by  the  answer  they  had  so  made  in  his  lifetime. (y) 
And  where  the  husband  [.nd  wife  had  not  answered  separately,  or 
had  not  so  answered  under  the  previous  sanction  of  an  order  of  the 
court,  she  was  held  bound  by  so  much  of  the  answer  as  was  called 
for  and  purported  to  come  from  her;(z)  or  which  in  point  of  fact 
had  been  made  by  and  received  from  her  as  her  separate  answer. (a) 
And  if  a  wife  who  is  executrix  knows,  or  apprehends,  that  her 
husband  will  answer  to  her  prejudice,  or  if  in  any  case  she  disap- 
proves of  the  defence  he  wishes  to  make,  the  court  will  give  her 
leave  to  answer  separately. (6)  So  that  in  whatever  way  this  an- 
swer of  English  and  wife  is  taken,  as  nothing  therein  set  forth,  as 
coming  from  her,  can  affect  his  interest ;  and  as  he  professes,  so  far 
as  he  answers  for  himself,  to  know  nothing  of  the  matter,  the  seve- 
ral parts  of  it,  which  so  distinctly  profess  to  be  the  allegations  of 
each,  may  safely  and  most  advantageously  for  each  be  treated  as 
if  they  had  been  set  forth  in  regular  and  entirely  separate  answers 
from  each  of  them. 

Taking  this  answer  in  this  way,  then,  it  appears,  that  the  defend- 
ant Bavid  English^  without  expressly  denying  any  thing,  admits 
nothing ;  but  puts  the  whole  of  the  plaintiff's  case  in  issue.  His 
defence  goes  to  the  very  origin,  foundation  and  existence  of  the 
plaintiff's  whole  cause  of  suit ;  and,  therefore,  it  behooves  them  to 
sustain  their  whole  case  in  every  way  against  him,  or  they  must 
totally  fail.  The  defendant  Lydia,  in  effect,  admits  the  original 
foundation  of  the  plaintiff's  cause  of  suit ;  but,  by  way  of  avoid- 
ance, considering  it  as  a  contract  of  bargain  and  sale  of  a  tract  of 
land,  avers,  in  substance,  that  the  purchase  money,  in  the  modes 
therein  described,  has  been  paid  and  fully  satisfied.    This  defence, 


(2/)  Shelbeny  v.  Briggs,  2  Vern.  249.— (c)  Wrottesley  i'.  Bendish,  3  P.  Will.  236; 
Le  Neve  v.  Le  Neve,  3  Atk.  648.— (a)  Chandos  i'.  Talbot,  2  P.  Will.  371.— (6)  Hx 
parte  Halsam,  2  Atk.  50 ;  Wybourn  v.  Blount,  Dick.  153  ;  2  Eq.  Ca.  Abr.  66 ;  Mitt" 
PI.  104. 


LINGAN  I'.  HENDERSON.  271 

being  one  by  which  she  confesses  and  avoids  the  cause  of  suit,  it 
lays  upon  her  to  prove  her  allegations  in  avoidance ;  or  otherwise, 
if  the  plaintiffs  sustain  their  cause  against  the  broad  defence  of  her 
husband  David,  they  must  be  relieved  as  prayed  against  both  of 
them.  Again,  the  defendant  Richard  Henderson  pleads  the  statute 
of  limitations  ;  by  the  form  of  which  he,  in  substance,  avers,  that, 
although  the- cause  of  suit  might  have  once  existed ;  yet,  as  the 
original  contract  had  not  been  in  any  way  renewed  by  any  recent 
acknowledgment  or  promise,  it  has  been  altogether;  barred  by  the 
prescribed  lapse  of  time.  If  this  be  a  plea  properly  applicable  to 
the  nature  of  this  case,  and  if  it  be  in  fact  true,  then,  as  it  goes 
to  the  whole  cause  of  suit,  and  shows  that  it  has  been  totally 
barred,  the  plaintiffs  can  have  no  relief  whatever. 

It  is  perfectly  clear,  therefore,  from  what  has  been  said,  that  if 
either  one  of  these  three  defences  be  sustained,  the  plaintiffs  can 
have  no  relief;  and  that  their  bill  must  be  dismissed  with  costs, 
notwithstanding  it  might  otherw^ise  have  been  taken  jno  confesso 
against  the  two  defendants  who  have  made  default. 

The  plaintiffs  have  stated  their  case  with  a  double  aspect,  so  as 
to  entitle  themselves  to  relief  in  either  of.  the  alternatives  upon 
which  they  rely.  They  have  rested  their  case  upon  its  being  con- 
sidered either  as  a  conveyance  in  trust,  or  as  a  bargain  and  sale, 
leaving  the  purchase  money  unpaid.  They  have  stated  their  case 
in  this  way,  as  they  believe  it  to  have  been ;  but  as  a  reason  for 
not  being  more  exact  in  every  particular,  they  say,  "  of  this,  or  of 
the  terms  of  the  contract,  if  any,  they  have  not  been  able  to 
discover  any  positive  proof;"  and  thus  admit,  that  their  statements 
may  be  in  some  respects  inaccurate ;  because  they  were  not  in 
possession  of  that  information  which  would  enable  them  to  set 
forth  their  case  with  greater  certainty ;  and  therefore,  they  pray  a 
discoveiy  of  the  defendants.  If  then  the  statements  of  the  bill 
were  in  any  essential  particular  incorrrect,  the  defendants  should 
have  objected  to  it  on  that  account ;  but  they  have  not  done  so ; 
and  therefore  the  plaintiffs  are  entitled  to  have  their  bill  now 
regarded  as  entirely  sufficient,  so  far  as  it  sets  forth  a  case  which, 
in  substance,  entitles  them  to  the  relief  they  ask.(c) 

There  is  no  proof  of  any  thing  like  a  trust;  therefore,  that  alter- 
native view  of  the  plaintiff's  case  may  be  at  once  put  aside.     The 


(c)  Carew  v.  Johnston,  2  Scho.  &  Lefr.  305;  Wright  v.  PJumptre,  3  Mad.  480  j 
Zane  v.  Zane,  6  Mun.  406. 


272  LINGAN  r.  HENDERSON. 

deed  of  the  8th  of  May,  1807,  proves,  that  James  M.  Lingan  did  then 
convey  the  tract  of  four  hundred  and  twenty  acres  of  land  in  the 
bill  mentioned  to  John  Hendersmi ;  the  receipt  or  memorandum  of 
the  10th  of  June,  1807,  which  has  been  authenticated,  proves,  that 
the  purchase  money  was  not  then  paid ;  and  the  witness  Henry 
Waring,  in  consistency  with,  and  in  corroboration  of  these  instru- 
ments of  writing,  proves,  that  John  Henderson,  in  his  lifetime, 
repeatedly  admitted  he  had  purchased  the  land  referred  to  in  those 
instruments  of  writing,  for  which  he  was  to  pay  thirteen  dollars 
and  one-third  of  a  dollar  per  acre ;  but  that  he  had  paid  no  part 
of  the  purchase  mohey,  and  w^as  unable  to  pay  it ;  and  this  witness 
further  proves,  that  the  land  was  held  by  John  Henderson  until  his 
death,  when  it  descended  to  his  children,  who  are  defendants  to 
this  suit.  There  is  no  proof  of  the  purchase  money  ever  having 
been  paid.  It  is  admitted,  that  James  M.  Lingan  is  dead,  and  that 
these  plaintiffs  are  his  legal  representatives.  This  is  the  substance 
of  the  case,  according  to  the  proofs,  and  in  all  material  points,  it 
accords  exactly  with  one  of  the  alternatives  of  the  case  set  forth  in 
the  biU. 

Whence  it  is  sufficiently  clear,  that  the  plaintiffs  have  sustained 
their  case  in  opposition  to  the  general  defence  of  David  English. 
And,  as  there  is  not  the  least  evidence  of  any  payment  or  satisfac- 
tion ever  having  been  made  in  the  manner  relied  on  in  defence  by 
the  defendant  Lydia  English,  the  plaintiffs  may  obtain  relief  against 
her  also  as  well  as  her  husband. 

The  defendant  Richard  Henderson  has  put  his  defence  entirely 
upon  his  plea  of  the  statute  of  limitations ;  and  the  plaintiffs  having 
established  their  case  in  all  respects  in  opposition  to  the  other 
defences ;  and  the  other  defendants  having  made  default ;  the 
whole  controversy  is  thus  reduced  to  the  single  question,  whether 
this  be  a  valid  defence  against  the  whole  or  not.  It  is,  therefore, 
proper,  that  it  should  be  carefully  considered. 

All  statutes  of  limitation  proceed  upon  the  policy  comprised 
in  the  maxim,  interest  reipublicfe  ut  sit  finis  litium ;  that  some 
lapse  of  time  must  be  prescribed  in  order  to  give  quiet  to  human 
affairs ;  and  as  affording  ground  to  presume,  without  the  power  of 
contradiction,  that  the  alleged  cause  of  controversy,  either  never 
existed  at  all,  or  that  if  it  did  once  actually  exist,  it  liad  been  in 
some  way  finally  adjusted  and   satisfied. (rf)     This   principle  of 

(d)  1  Stark.  Ev.  33 ;  4  Stark.  Ev.  1234 ;  Smith  v.  Clay,  3  Bro.  C.  C.  639,  note 


LINGAN  V.  HENDERSON.  273 

limitation,  under  one  or  other  name  or  form,  is  to  be  found  in  all 
codes  of  law.  It  is  a  rule,  which,  as  to  some  cases,  is  prescribed 
in  positive  terms  by  the  legislature,  while  as  to  others  it  is  the 
result  of  usage  or  judicial  decisions  ;  but  in  all  instances  the  lapse 
of  time  specified,  as  applicable  to  the  case,  gives  a  rule  by  which 
all  courts  of  ju^ice  are  bound.  The  statute  of  limitations  does  not 
apply  in  terms  to  proceedings  in  courts  of  equity ;  it  applies  to 
particular  actions  at  common  law,  and  limits  the  time  within  which 
they  shall  be  brought,  according  to  the  nature  of  those  actions  ; 
but  it  does  not  say  there  shall  be  no  recovery  in  any  other  mode  of 
proceeding.  If  the  equitable  title  be  not  sued  upon  within  the 
time  within  which  a  learal  title  of  the  same  nature  ought  to  be  sued 
upon,  to  prevent  the  bar  created  by  the  statute,  the  court  acting  by 
analogy  to  the  statute,  will  not  relieve.  If  the  party  be  guilty  of 
such  laches  in  prosecuting  his  equitable  title  as  would  bar  him,  if 
his  title  were  solely  at  law,  he  shall  be  barred  in  equity ;  that  is  all 
the  operation  this  statute  has  or  ought  to  have  on  proceedings  in 
equity.(e) 

But  at  law,  as  well  as  in  equity,  there  are  various  peculiarities, 
which  have  been  held  to  be  sufficient  to  take  a  case  out  of  the 
operation  of  the  rule.  They  are  either  such  as  have  been  omitted 
to  be  noticed  in  the  statute  itself  ;(y)  or  they  are  such  as  the  statute 
has  expressly  specified ;  or  they  are  such  as  arise  out  of  facts  and 
circumstances, — as  where  the  courts  of  justice  have  been  closed  by 
some  great  national  calamity  •,{g)  or  where  the  parties  stand  in  the 
relation  to  each  other  of  trustee  and  cestui  que  trust  ;{h)  or  where 
the  party,  by  omitting  to  plead  or  ask  in  his  answer  the  benefit  of 
the  statute  of  limitations,  thereby  tacitly  admits,  that  the  rule  cannot 
or  need  not  be  applied  to  his  case  ;(t)  or  where,  by  an  express 
declaration  or  acknowledgment  admitting;  the  claim,  he  thereby 
renews  the  contract  or  cause  of  suit,  and  thus  tacitly  admits  that 
his  case  is  not  within  the  terms  of  the  rule.(j)  In  all  cases  where 
this  court,  having  cognizance  of  the  whole  case,  finds  it  uncon- 
scionable to  suffer  the  statute  of  limitations  to  be  applied,  it  will 
be  disregarded ;  and  in  all  other  cases,  of  which  this  court  does 


(e)  Bond  v.  Hopkins,  1  Scho.  k  Lefr.  428;  Stackhouse  v.  Barnston,  10  Ves.  466; 
Shipbrookc  f.  Hinchingbrook,  13  Ves.  396;  Cholmondclcy  v.  Clinton,  2  Jac.  &Walk. 
139  ;  Christophers  v.  Sparke,  2  Jac.  k  Walk.  233 ;  The  Rebecca,  5  Rob.  Ad.  Rep. 
104  ;  Morgan  v.  Davis,  2  H.  &  McH.  17.— (/)  4  Bac.  Abr.  472.— (?)  Co.  Litt.  249. 
(/i)  4  Bac.  Abr.  473.— (i)  Prince  v.  Heylin,  1  Atk.  494.— (j)  Oliver  v.  Gray,  1  H. 
&  G.  213. 

35 


274  LINGAN  V.  HENDERSON. 

not  take  cognizance,  because  of  its  being  improper  to  break  in 
upon  the  regular  course  of  legal  proceedings  more  than  is  neces- 
sary for  the  purposes  of  justice,  it  will  prevent  a  party  from  taking 
an  unequitable  advantage  of  the  statute  of  limitations,  or  any  lapse 
of  time  at  law.(i^^) 

Defences  resting  upon  the  statute  of  limitations  ^t  law,  or  upon 
the  same  lapse  of  time  in  analogous  cases  in  equity,  seem  to  have 
been  treated  with  a  rather  unsteady  hand.  They  have  been  some- 
times regarded  as  desenang  much  favour,  while  at  other  times  they 
have  been  scowled  upon  as  subterfuges,  resorted  to  for  the  purpose 
of  escaping  from  the  real  merits  and  justice  of  the  case;  and 
particularly  so,  where,  as  in  this  instance,  such  a  defence  has  been 
relied  on  by  only  one  of  a  plurality  of  defendants  as  a  total  bar  to 
the  whole  cause  of  suit.  But  there  cannot  be,  in  reality,  any  such 
pliability  in  the  general  rules  of  law  as  will  allow  of  their  being 
bent  and  twisted  in  one  way  or  other  at  the  pleasure  of  any  court 
of  justice  by  whom  they  may  be  administered. 

Here,  however,  it  is  insisted  by  this  plea,  that  neither  this 
defendant  Richard  Henderson,  nor  John  Henderson  deceased,  did 
at  any  time  within  three  years,  before  the  exhibition  of  tliis  bill  of 
complaint,  promise  or  agree  to  pay,  or  satisfy  the  plaintiffs  or  James 
M.  Lmgan,  any  sum  of  money  on  account  of  the  transaction  in  the 
bill  of  complaint  mentioned.  From  which  it  would  seem,  that, 
although  it  is  insisted,  the  whole  cause  of  suit  has  been  barred 
by  the  statute  of  limitations,  yet,  as  this  defendant  Richard 
Henderson  has  denied,  that  he  himself  made  any  promise,  his  plea 
does  thereby  tacitly  concede,  that  an  acknowledgment  of  this  cause 
of  suit,  made  by  himself  or  any  other  of  his  co-defendants,  would 
take  the  case  out  of  the  statute ;  upon  the  ground,  that  if  such  a 
plea  from  any  one  defendant  would  be  a  bar  to  the  whole,  then  an 
acknowledgment  by  any  one  would  revive  the  whole.  And  if  so, 
then,  apart  from  the  defences  of  English  and  wife,  as  there  is  here 
a  default  and  tacit  admission  of  the  whole  by  two  others  of  these 
defendants,  this  plea  of  the  defendant  Richard  Henderson  can  be 
of  no  avail  to  himself,  or  to  any  of  his  co-defendants.  (/) 

If  this  position  be  tenable,  then  it  is  evident,  that  as  in  all  cases, 
where  the  statute  of  limitations  is  not  expressly  relied  on,  it  is 
considered  as  waived,  it  can  in  no  case  be  received  as  a  valid 
defence,  where  there  is  a  plurality  of  defendants  ;  unless  each  one, 

(A-)  Bond  I'.  Hopkins,  1  Sch.  &  Lefr.  430.— (Z)  Johnson  v.  Beanlslee,  15  John.  Rep.  3, 


LINGAN  V.  HENDERSON.  275 

or  all  of  Ihem  together,  expressly  rely  upon  it.  But,  as  has  been 
shown,  it  is  a  well  settled  rule,  in  equity  as  well  as  at  law,  that  any 
defence  coming  from  any  one  of  a  plurality  of  defendants,  which 
goes  to  the  whole,  and  shows,  that  the  plaintiff  has  no  cause  of 
suit,  effectually  precludes  the  court  from  giving  relief  in  any  way 
whatever  against  any  other  defendant,  as  well  as  against  him  who 
makes  such  a  defence ;  because  a  plaintiff  can  only  obtain  relief 
upon  the  strength  of  his  own  title,  and  by  shewing,  that  it  is  good 
against  all  the  world  as  well  as  against  each  one  of  the  then 
defendants  ;  and  also,  because  every  court  of  justice  must  act  con- 
sistently, and  cannot  be  allowed  to  contradict  itself,  by  saying,  in 
the  same  decree,  in  the  same  case,  that  the  plaintiff  has  no  cause 
of  suit  whatever ;  and  also,  that  he  has  a  just  and  well  founded 
cause  of  complaint,  (m) 

It  may  therefore  be  regarded  as  an  inflexible  general  rule,  which 
admits  of  few,  if  any  exceptions,  that  according  to  any  view  which 
can  be  taken  of  the  case,  or  upon  any  defence  made  against  it,  if  it 
appears,  upon  the  whole  record,  that  the  plaintiff's  title,  or  cause 
of  suit,  is  a  mere  nullity,  or  has  been  barred,  satisfied,  or  extin- 
guished in  any  way  whatever,  he  can  have  no  relief. 

There  are,  however,  some  cases  which  present  an  apparent 
exception  to  this  general  rule.  A  court  of  equity  may,  and  always 
does,  shape  its  decree  according  to  the  nature  of  the  case,  so  as 
to  place  the  burthen  as  nearly  as  may  be  where  it  ought  to  rest. 
Where  there  are  many  defendants,  and  some  or  one  of  them  only 
is  found  liable  to  the  plaintiff's  cause  of  suit,  the  bill  may  be  dis- 
missed as  to  the  others ;  or  a  defendant  who  has  been  made  so 
merely  because  of  his  being  the  depository  of  the  fund,  for  the 
purpose  of  having  it  detained  in  his  hands  by  injunction,  may,  by 
the  dissolution  of  the  injunction,  cease  to  be  a  necessary  party, 
even  before  the  case  has  been  brought  to  a  final  hearing  ;(n)  or 
if  the  plaintiff  has  a  separate  cause  of  suit  against  each,  then 
each  of  them  may  be  charged  according  to  their  respective 
liabilities ;  or  where  all  the  defendants  are  alike  bound  for  the 
whole  to  the  plaintiff,  but  some  of  them  stand  only  as  sureties 
for  the  other,  there  the  court  may,  by  a  decree  over,  provide  for 
the  relief  of  the  sureties  against  their  principal,  in  case  they 
should  satisfy  the  claim,  or  direct  a  contribution,  in  case  any  one 
surety  should  pay  more  than  his  proportion.     These  instances  are 

(«i)  Gregory  v.  Molesworth,  3  Atk.  626.— (n)  2  Mad.  Chan.  191. 


276  LINGAN  V.  HENDERSON. 

common,  and  the  course  of  the  court,  in  that  respect,  is  well 
settled.  The  court  is  involved  in  no  contradiction  or  inconsist- 
ency by  any  such  decree ;  as  a  defendant  in  equity  can  only  be 
charged  to  the  extent  of  his  liability,  so  the  court's  decree  against 
him  must  be  modified  accordingly.  But  as  no  one  can  be  permitted 
impertinently  to  interfere  with  a  matter  by  which  he  is  not  proposed 
to  be  or  obviously  cannot  be  charged,  a  defendant  cannot  be 
allowed  to  direct  any  sort  of  defence  against  all  or  any  distinct 
portion  of  the  plaintiff's  cause  of  suit  in  which  his  interests  are  not 
implicated,  or  by  which  he  can  be  subjected  to  no  kind  of  liability. 
Where,  however,  a  defendant's  liability  is  such,  as  principal  or 
otherwise,  that  he  must  be  charged  by  a  decree  which  affirms 
the  validity  of  the  alleged  cause  of  suit,  then  he  may  rightfully 
direct  any  defence  against  it  which  goes^  to  shew,  that  neither  he 
himself,  nor  any  one  of  his  co-defendants,  ought  to  be  charged  by 
it ;  and  if  he  succeeds  in  establishing  such  a  defence,  the  plaintiff's 
bill  must  be  totally  dismissed. 

Hence  it  is  obvious,  that  this  class  of  cases,  in  which  the  court 
may  find  it  necessaiy  or  proper,  because  of  their  peculiar  circum- 
stances, to  pass  a  separate,  a  reciprocal,  a  direct,  or  an  inverted 
decree,  do  in  reality  present  nothing  which  can  fairly  or  in  any 
way  be  considered  as  an  exception  to  this  general  rule. 

But  where  two  or  more  persons  have  been  bound  by  the  contract 
upon  which  the  suit  has  been  brought,  and  one  of  them  pleads  the 
statute  of  limitations  in  bar,  it  has  been  said,  that  an  acknowledg- 
ment made,  within  the  limited  time,  of  its  then  existing  validity  by 
such  defendant,  or  by  any  other  of  his  co-defendants,  will  take  the 
case  out  of  the  statute.  The  adjudications  in  relation  to  this  mat- 
ter are  various  and  contradictory.  Therefore,  without  attempting 
to  reconcile  them,  it  will  be  sufficient  to  trace  out  the  reason  of  the 
law  so  far  as  it  is  believed  to  be  properly  applicable  to  this  and  all 
such  cases  in  equity. 

To  constitute  a  valid  contract  of  any  description,  it  is  indispen- 
sably necessary  that  the  parties  should  be  competent  to  contract ; 
and  being  so  competent,  that  they  should  all  of  them,  in  the 
manner  prescribed  by  law,  understandingly  have  given  their  free 
consent  to  the  contract  in  question.  In  general,  when  the  contract 
purports  to  be  the  obligation  or  promise  of  two  or  more  persons,  it 
must  be  shewn,  that  each  one  of  them  distinctly  gave  his  consent 
to  it,  and  thereby  actually  and  in  terms  for  himself  became  so 


LINGAN  V.  HENDERSON.  277 

bound.  But  where  there  exists  a  partnership  in  trade,  each  part- 
ner may  mtike  certain  contracts  in  the  name  of  the  whole  which 
shall  be  obligatory  alike  upon  all  the  partners.  Now,  in  all  such 
cases,  any  one  of  the  contractors  may  satisfy  the  entire  demand  of 
the  contract ;  and  upon  its  terms  being  wholly  complied  with  by 
any  one  of  them,  it  is  thereby  totally  extinguished  and  ceases  to  be 
any  longer  obligatorj'^  upon  any  one  of  them  in  favour  of  him  to 
whom  it  was  given.  That  a  contract  may  be  wholly  satisfied 
by  any  one  of  the  contractors,  and  when  so  satisfied  is  thereby 
totally  extinguished  as  to  all,  is  a  principle  of  law  so  obviously 
rational  and  just,  that  it  need  only  to  be  stated  to  be  universally 
admitted. 

Consequently  it  is  equally  manifest,  that  any  renewinent  of  a 
contract,  which  has  been  thus  satisfied,  barred  or  extinguished, 
can  only  be  effected  by  the  exercise  of  a  similar  capacity  to  con- 
tract to  that  which  had  been  called  forth  for  its  original  formation. 
Suppose  then,  the  alleged  cause  of  suit  to  be  an  agreement  whereby 
all  the  defendants  had  bound  themselves  to  pay  to  the  plaintiff  a 
certain  sum  of  money.  In  support  of  such  a  cause  of  suit  it  is 
necessary  to  prove,  that  each  one  of  the  defendants,  by  his  express 
consent,  did  actually  become  bound  by  it.  And,  therefore,  after  it 
has  been  barred  or  extinguished,  it  is  no  less  necessary,  in  order 
to  show  that  it  has  been  renewed,  to  prove,  in, like  manner,  that 
each  of  the  defendants  did,  by  his  express  consent,  become  bound 
by  such  new^  agreement ;  because  it  is  no  less  essential  to  the 
validity  of  the  neic,  than  it  was  to  that  of  the  old  agreement,  that 
it  should  be  shewn  to  have  been  expressly  assented  to  by  each  one 
who  is  proposed  to  be  charged  by  it.  Where  there  is  no  separate 
cause  of  suit  against  any  one  defendant,  and  each  one  of  them  is 
no  otherwise  chargeable  by  such  agreement  than  as  party  with  all 
his  co-defendants,  it  must  be  established  as  an  agreement  to  which 
all  are  liable,  or  the  plaintiff  can  take  no  benefit  from  it,  and  his 
bill  must  be  dismissed.  But  where  it  is  shewn,  that  a  partnership 
in  trade  did  actually  exist  between  the  defendants,  there,  as  during 
the  continuance  of  such  partnership,  all  the  partners  may  join  in 
making  a  promissory  note,  or  the  like,  in  relation  to  their  trade,  so 
as  to  bind  the  firm  ;  so,  during  the  continuance  of  the  partnership, 
a  promise  by  any  one  of  the  partners  will  as  effectually  renew  such 
contract,  as  an  express  promise  by  all  of  them ;  because,  during 
the  continuance  of  the  partnership,  each  partner  has  the  power  to 


278  LINGAN  V.  HENDERSON. 

make  a  contract  of  that  nature,  which  shall  be  obligator}'  upon 
all.(o) 

Hence  it  follows,  as  a  promise  or  acknowledgment  can  only- 
take  a  case  out  of  the  statute  of  limitations  because  of  its  beinof, 
of  itself,  a  new  promise,  or  because  of  its  being  satisfactory  evi- 
dence of  the  renewment  of  the  contract,  it  is  perfectly  clear,  that 
such  promise  or  acknowledgment  must  come,  not  merely  from 
one  alone,  but  from  each,  or  all  of  the  contractors,  or  from  a  part- 
ner in  trade  who  has  a  then  power  of  contracting  in  the  name  of 
all.  And,  consequently,  a  promise  or  acknowledgment  of  one 
alone  of  several  contractors,  or  of  one  partner,  after  the  dis- 
solution of  the  partnership,  can  no  more  take  a  case  out  of  the 
statute  of  limitations  than  the  promise  of  one  man  can  be  allowed 
to  operate  as  an  original  obligation  upon  another,  without  his 
consent.  (_p) 

Where  a  plaintiff's  cause  of  suit  is  made  up  of  several  distinct 
parts,  each  of  which  may  have  been  separately  accounted  for  and 
satisfied ;  there,  as  the  statute  may  have  a  distinct  operation  against 
each  part,  a  plea  of  the  statute  of  limitations  may  be  supported  as 
a  good  bar  to  some  of  such  separate  parts,  though  not  to  the 
w^hole.(9)  But  a  contract  which  is  enlire  and  indivisible  in 
its  nature,  must  necessarily  be  altogether  good  or  bad  ;  it  must  be 
executed  as  it  stands,  or  be  totally  rejected.  If  it  makes  no  dis- 
crimination between  the  several  contractors  who  are  bound  by  it, 
the  court  can  make  none,  at  least  to  the  prejudice  of  him  for  whose 
benefit  it  was  made  ;  since  it  is  a  settled  axiom  of  law,  from  which 
no  court  of  justice  has  ever  ventured  substantially  to  depart,  that 
the  obligation  of  a  legal  contract  cannot  be  impaired  in  any  way 
whatever.  So  far  as  the  courts  of  justice  are  concerned,  all  the 
incidental  as  well  as  all  the  direct  obligations  of  contracts  have 
been  most  sacredly  preserved ;  and,  that  this  inestimable  judicial 
rule  should  be  made  universal  and  unalterable,  it  has  been  declared 

(o)  Ex  parte  Dewdney,- 15  Ves.  480  ;  Whitcomb  v.  Whiting,  Doug.  652  ;  Tinkler 
V.  Walpole,  14  East,  226 ;  Gow.  Part.  79,  212 ;  4  Stark.  Ev.  896  ;  Blanch.  Stat.  Lim. 
124  ;  Clementson  v.  Williams,  8  Cran.  72  ;  Clark  v.  Vanriemsdyk,  9  Cran.  156  ; 
Bell  V.  Morrison,  1  Peter.  367 ;  Walden  v.  Sherburne,  15  John.  Rep.  409;  Rootes  v. 
Wcllford,  4  Mun.  215  ;  Fisher  v.  Tucker,  1  McCord,  172 ;  Wilmer  v.  Harris,  5  H.  & 
J.  9;  Ward  v.  Howell,  5  H.  &;  J.  60.— (p)  Hyleing  v.  Hastings,  1  Ld.  Raym.  3S9; 
Boydell  v.  Drummond,  2  Camp.  157;  Sterndalew.  Hankinson,  1  Sim.  393  ;  Jones  v. 
Moore,  5  Binn.  573.— (17)  Webb  r.  Martin,  1  Levintz.  48;  Coventry  v.  Apsley, 
2  Salk.  420  ;  Aldridgo  v.  Duke,  3  Mod.  110. 


LINGAN  V.  HENDERSON.  279 

by  the  Constitution  of  the  Union,  that  no  State  shall  pass  any  law 
impairing  the  obligation  of  contracts. 

But,  if  a  bond,  promissory  note,  or  contract  binding  two  or  more 
persons  could  be  split  up  among  them,  and  their  general  and  com- 
mon liability  portioned  out  upon  each,  it  might,  in  that  way,  be  so 
essentially  altered  as  to  be  no  longer  the  contract  into  which  they 
entered ;  its  benefits  might  be  cut  down,  scattered  and  totally  lost ; 
its  burthens  might  be  made  to  bear  upon  each  in  a  manner  wholly 
different  from  that  to  which  he  had  consented ;  and  its  incidental 
obligations,  entitling  a  contractor  to  a  remedy  over,  or  to  contribu- 
tion, might  be  partially  or  totally  set  aside  without  his  consent,  and 
to  his  utter  ruin.  These  would  be  some  of  the  inevitable  conse- 
quences of  allowing  a  plea  of  the  statute  of  limitations  to  be 
received  as  a  bar  of  the  cause  of  suit  founded  upon  such  a  contract, 
so  far  only  as  to  be  an  exoneration  of  the  contractor,  by  whom  it 
was  pleaded,  leaving  the  others  to  bear  the  whole  burthen  or  only 
so  much  of  it  as  should  remain,  after,  some  how  or  other,  deduct- 
ing that  which  ought  to  have  been  borne  by  him  who  had  been  so 
discharged.  Any  such  partial  or  proportional  impairment  of  the 
contract  would,  however,  not  only  be  unjust  and  unconstitutional, 
but  the  execution  of  such  a  rule,  as,  that  a  plea  of  limitations 
should  enure  only  to  the  benefit  of  him  who  pleads  it,  might  be 
found,  in  cases,  such  as  creditors'  suits,  where  a  great  number  of 
persons  had  been  brought  or  let  in  as  parties  having  a  variety  of 
conflicting  interests  in  the  controversy,  to  be  arithmetically  and 
absolutely  impracticable. 

But,  in  the  case  now  under  consideration,  there  was  ori"i- 
nally  but  one  person,  John  Henderson,  liable  under  the  contract 
set  forth  in  the  complainants'  bill ;  and  therefore,  any  acknow- 
ledgment coming  from  him  might  well  have  been  consid*  ^d  as  a 
new  contract,  upon  the  terms  set  forth,  so  as  to  bind  him,  i,^.J  take 
the  case  out  of  the  statute  of  limitations ;  but  by  his  death,  the 
liability  has  devolved  upon  all  these  defendants  ;  and  therefore, 
as  no  one  of  them  has  the  power  alone  to  make  a  new  contract 
upon  the  same  terms  so  as,  in  like  manner,  to  bind  all  the  others ; 
so  no  tacit  admission,  or  acknowledgment,  or  even  express  pro- 
mise of  any  one  of  them  can  be  received  as  sufficient  to  take 
the  case  out  of  the  statute  of  limitations,  if  it  shall  appear  to 
have  been  properly  applied  and  relied  upon  by  this  defendant, 
Riduird  Henderson^  alone. 


280  LINGAN  V.  HENDERSON. 

From  their  nature,  pleadings  in  equity  do  not  in  general  admit 
of  the  same  precision  as  pleadings  at  law ;  but  in  equity,  as  well 
as  at  law,  the  pleadings  must  be  substantially  sufficient.  The 
plaintiff  is  not  tied  down  to  any  particular  form  of  stating  his  case 
in  his  bill ;  for,  however  loosely  or  awkwardly  its  statements  may 
be  made,  yet  he  may  obtain  the  relief  he  seeks,  if,  upon  a  fair  read- 
ing of  the  whole,  it  appears,  that  a  sound  case  has  been  substan- 
tially set  forth.  But  if  a  defendant  in  equity  puts  in  Q.plea,  consi- 
derable precision  is  required  ;  because  he  thereby  proposes  to  reduce 
his  case  to  a  single  point,  (r)  And  therefore,  as  to  pleas  in  equity, 
there  does  not  appear  to  be  any  material  difference  between  the  rules 
of  a  court  of  common  law,  and  those  of  a  court  of  chancery.  Where 
the  case,  as  stated  in  the  bill,  appears  to  involve  several  distinct  sub- 
jects as  component  parts  of  one  complex  whole,  and  the  defendant 
offers  a  plea  in  bar,  it  must  be  so  framed  as  to  be  exactly  applicable 
to  the  case ;  for  if  it  be  impossible  to  know  to  which  of  the  several 
subjects  spoken  of  in  the  bill  it  precisely  refers,  it  will  be  deemed  bad 
in  form  as  well  as  in  substance. (s)  So  too  a  plea  in  equity,  as  well 
as  at  law,  must  tender  a  material  issue  ;  it  must  not  only  reduce  the 
defence  to  a  single  point,  but  that  point  must  be  of  such  a  nature 
as,  when  determined,  will  enable  the  court  to  put  an  end  to  the 
case.(^)  In  equity,  as  at  law,  a  plea  of  the  statute  of  limitations 
must  be  properly  applicable  to  the  particular  nature  of  the  case ; 
as  where  a  note  was  given  for  the  payment  of  an  annuity  during 
the  life  of  the  annuitant,  the  defendant  pleading,  that  he  did  not 
promise  to  pay  within  six  years  is  bad  ;  he  should  have  pleaded  the 
cause  of  action  hath  not  accrued  within  the  six  years,  (w)  And  so, 
in  an  action  of  trespass,  the  statutory  limitation  to  which  is  Jour 
years,  where  the  defendant,  instead  of  relying  upon  that  lapse  of 
time  as  a  bar,  pleaded  not  guilty  within  sia:  years ;  the  plea  upon 
demurrer  was  held  bad  ;  because  it  did  not  precisely  disclose,  and 
rely  upon  that  which  had  been  made  a  bar  by  the  statute.(y) 
Whence  it  appears  to  be  necessary,  that  the  plea  of  this  defend- 
ant Richard  Henderson^  should  be  found  to  have  reduced  the 
defence  to  a  single  material  point,  the  determination  of  which  will 
enable  the  court  at  once  to  put  an  end  to  the  case. 

(r)  Carew  v.  Johnston,  2  Scho.  &  Lefr.  305 ;  Rowe  v.  Teed,  15  Ves.  377.— (s)  Meder 
V.  Bert,  Gilb.  Eq.  Rep.  185  ;  Talbot  v.  May,  3  Atlc  \S.—{i)  Jones  v.  Davis,  16  Ves. 
264  ;  Morrison  v.  Tumour,  18  Ves.  181 ;  Steffi).  Andrews,  2  Mad.  Rep.  5;  Co.  Litt. 
126.— (w)  3AUC.70;  Gould  v.  Johnson,  2  Salk.  422.— (y)  Blackmore  r.  Tidder- 
tey,  2  Ld.  Raym.  1099  ;  Macfadzen  v.  Olevant,  6  East,  389. 


LINGAN  V.  HENDERSON.  2g| 

The  bill  being  framed  in  the  alternative,  asking  either  a  recon- 
veyance of  the  land  or  the  payment  of  the  purchase  money,  this 
defendant  Richard  Henderson  has  directed  his  defence  mainly  to 
the  latter  alternative,  being  well  aware,  that  there  was  no  evidence 
of  any  such  trust  as  could  authorize  the  plaintiffs  to  call  for  a 
reconveyance  of  the  land.  And,  regarding  the  bill  in  this  latter 
aspect,  as  praying  only  for  the  payment  of  the  purchase  money,  it 
has  been  urged,  that  it  is,  in  effect,  no  more  than  a  suit  for  the 
recovery  of  money  due  by  simple  contract,  to  which  this  plea  is  as 
properly  applicable  as  it  would  have  been  to  such  a  demand  in  a 
court  of  common  law.  The  defendant  Richard  Henderson^  confi- 
dently proceeding  upon  this  ground,  as  it  would  seem,  has  accord- 
ingly so  framed  his  defence.  His  plea,  after  referring  to  and 
reciting  the  act  of  1715,  eh.  23,  avers,  that  neither  he  nor  the  said 
John  Henderson  deceased,  did  at  any  time  within  three  years  before 
exhibiting  the  bill  or  serving  or  suing  out  process  against  the 
defendant,  promise  or  agree  to  come  to  any  account  for  or  to  pay, 
•or  any  way  to  satisfy  the  complainants,  or  the  said  James  M.  Lin- 
gan  any  sum  of  money  for  or  by  reason  of  the  matters,  transac- 
tions, or  things  in  the  bill  of  complaint  mentioned. 

But,  although  this  may  be  admitted  to  be  one  of  the  views 
which  may  be  taken  of  the  case  set  forth  in  the  bill,  yet  it  does 
not  comprehend  and  reduce  to  a  single  point  all  the  material  equity 
which  belongs  to  it ;  on  the  contrary,  considering  it  as  nothing 
more  than  a  bill  for  the  recovery  of  so  much  money,  due  by  simple 
contract,  it  may  well  be  doubted,  whether  this  court  could  take  cogni- 
zance of  it  at  all.  But  this  is,  in  substance,  a  bill  by  vendors 
against  purchasers  to  enforce  an  equitable  lien  as  a  means  of 
recovering  the  purchase  money ;  and  therefore,  admitting  it  to  be 
true,  that  the  cause  of  suit,  so  far  as  it  is  founded  in  simple  contract, 
which  is  the  only  point  presented  by  the  plea,  has  been  barred  by 
the  statute  of  limitations,  yet  the  determination  of  that  point  does 
not  close  the  substantial  equity  of  the  case,  because  the  plaintiffs' 
equitable  lien  must  still  remain  to  be  disposed  of  by  the  court. 

But  the  act  of  assembly,  which  prescribes  the  limitation  of 
actions  upon  bonds,  notes,  and  simple  contracts,  does  not  apply  to 
suits  in  chancery,  for  the  recovery  of  money  secured  by  a  mort- 
gage, or  an  equitable  lien  ;  or  to  mortgages  in  any  way  or  of  any 
description.  For  even  supposing,  that,  along  with  a  mortgage,  a 
bond  or  note  had  been  given  as  a  security  for  the  sam^e  debt ;  and 
a  suit  had  been  brought  on  the  bond  or  note,  vvhich  had  been,  on-a 

36 


282  LINGAN  V.  HENDERSON. 

plea  of  limitations,  adjudged  to  be  barred ;  yet,  that  would  not  have 
affected  the  party's  remedy  upon  the  mortgage ;  because,  the  suit 
in  chancery  upon  the  mortgage  involves  the  title  to  the  land,  which, 
by  analogy,  can  only  be  baired  by  the  limitation  of  twenty  years. 
At  law  the  lapse  of  twelve  or  three  years  is  an  absolute  bar  to  the 
remedy  upon  a  bond  or  simple  contract.  But  a  mortgage  is  a 
security  of  a  higher  and  more  durable  nature;  one  by  which  the 
right  to  the  land  is  pledged  for  the  payment  of  the  debt^  The 
lapse  of  twenty  years,  in  such  cases,  has  been  allowed,  by  analogy, 
and  not  by  any  direct  operation  of  the  statute  limiting  the  time 
within  which  an  entiy  into  land  must  be  made,  to  raise  a  presump- 
tion, either  that  the  debt  so  secured  never  was  due,  or  that  it  had 
been  paid.(z^)  And,  upon  the  same  principles,  a  similar  presump- 
tion of  satisfaction  after  the  lapse  of  twenty  years  has  been  held  to 
be  a  bar  to  a  bill  for  the  recovery  of  the  purchase  money  founded 
on  the  vendor's  equitable  lien. (2")  But,  where  a  mortgage,  and  a 
bond  or  note  has  been  given  to  secure  the  payment  of  the  same 
debt,  the  creditor  may  sue  on  all  his  remedies  at  the  same  time. 
He  may  file  a  bill  in  chancery  to  foreclose,  bring  an  action  of 
ejectment,  and  also  an  action  upon  the  bond  or  note.  The  lapse 
of  tioelve  or  three  years  would  be  a  bar  of  his  action  upon  the 
bond  or  note ;  but  the  ejectment  could  only  be  barred  by  a  lapse 
of  twenty  years.  The  bill  in  chancery  to  foreclose  the  mortgage 
or  to  enforce  the  equitable  lien,  being  analogous  to  the  proceeding 
at  law  by  ejectment  upon  the  mortgage,  can  only  be  barred  by  a 
similar  lapse  of  iime.{y)  Hence,  although  issue  has  been  joined 
on  this  plea,  it  must  be  regarded  as  a  nullity  ;  since  there  is  nothing 
in  the  case  to  which  it  can  at  all  apply. 

Recollecting  that  the  deed  of  conveyance  from  James  M.  Lingan 
to  John  Henderson]  bears  date  in  May,  1807,  after  which  John  Hen- 
derson repeatedly  acknowledged,  that  he  had  paid  no  part  of  the 
purchase  money  ;  that  a  plea  admits  the  truth  of  e\evy  thing  stated 
in  the  bill  not  denied  by  it ;  that  there  is  no  answer  in  support  of 
this  plea  denying  the  truth  of  those  acknowledgments  charged  in 
the  bill  to  have  been  made  by  John  Henderson,  which  would  cer- 
tainly take  the  case  out  of  the  statute  had  it  been  barred  in  his 
lifetime;  and  that  this  suit  was  instituted  in  November,  1821,  it  is 


(u>)  Toplis  V.  Baker,  2  Cox.  123  ;  Pow.  Mort.  361,  note  T.  .39.3  note,  1153,  1155. 
(X)  Bidlake  v.  Arundel,  1  Rep.  Cha.  93  ;  Hunton  v.  Davies,  2  Rep.  Cha.  44 ;  Mar- 
thews  Presuin.  395.— (?/)  Pow.  Mort.  96C,  note  G. ;  Hughes  v.  Edwards,  9  Wheat.  494. 


LINGAN  V.  HENDERSON.  283 

perfectly  evident,  that  the  statute  of  limitations,  in  no  form  in  which 
it  could  have  been  relied  on  as  a  defence,  could  operate  as  a  bar  to 
the  equitable  lien  by  which  this  land  was  bound  to  the  plaintiffs  for 
tlie  payment  of  the  purchase  money.  And  it  being  entirely  clear, 
from  the  pleadings  and  proofs,  that  the  purchase  money  agreed  to 
be  paid  by  the  late  John  Henderson^  for  the  four  hundred  and  tw^enty 
acres  of  land  he  purchased  of  the  late  James  M.  Lingan,  never 
has  been  paid  by  any  one  ;  and  that  the  vendor's  lien  for  its  security 
never  has  been  abandoned,  or  in  any  way  extinguished,  the  plain- 
tiffs must  be  relieved,  under  their  general  prayer,  in  the  most 
advantageous  and  effectual  manner  authorized  by  the  nature  of 
their  case. 

Whereupon  it  is  Decreed,  that  the  bill  of  complaint  as  against 
the  absent  defendants,  w^ho  have  not  answered,  be  taken  pro  con- 
fesso.  Decreed,  that  the  statement  of  the  auditor  be  confirmed  ; 
and  that  the  defendants,  on  or  before  the  8th  of  June  next,  pay  or 
bring  into  this  court,  to  be  paid  unto  the  said  Janet  Lingan,  as 
administratrix  of /a7?i€sJlf.Zt«o-a??,  the  sum  of  $11, 924  14,  with  legal 
interest  on  $5573  33,  part  thereof,  from  the  fifth  day  of  the  present 
month  until  paid  or  brought  in.  And  Decreed,  that  upon  the  failure 
of  the  said  defendants  to  pay  or  bring  into  court  the  said  sum  of 
money  as  aforesaid,  that  then  the  said  land  and  property  in  the 
proceedings  mentioned,  be  sold  for  the  payment  of  the  same ;  that 
Louis  Gassaioay  be  and  he  is  hereby  appointed  trustee  to  make  the 
said  sale,  &c.  &c.,  in  the  usual  form. 


The  defendants  appealed  from  this  decree,  and  at  June  term, 
1830,  the  Court  of  Appeals  reversed  the  decree,  and  dismissed  the 
bill  of  the  complainants  with  costs,  but  filed  no  opinion.  In  the 
case  of  McCormick  v.  Gibson,  3  Gill  ^  Joh.  18,  the  Court  of 
Appeals  have,  however,  concisely  stated  their  views  of  this  case. 


284  OGDEN  V.  OGDEN. 


OGDEN  V.  OGDEN. 

The  statute  of  frauds  does  not  embrace  mutual  promises  to  many,  but  extends  only 
to  agreements  to  pay  marriage  portions  ;  and  in  such  cases  according  to  the  proper 
si"-nification  of  the  word  agreement ;  the  whole,  the  consideration  as  well  as  the 
promise,  must  be  iii  writing. 

If  a  person  \\Tites  a  letter  promising  to  give  a  fortune  with  his  daughter  or  niece  to  a 
man  if  he  should  marry  her ;  and,  under  the  encouragement  of  the  letter,  the  man 
does  many  her,  he  shall  recover ;  the  agreement  having  been  executed  as  far  as  it 
could  be  on  his  part ;  but  the  court  must  be  satisfied,  that  the  letter  imports  a 
concluded  agTeement,  or  affords  sufficient  materials  for  a  more  fonnal  agreement. 

This  bill  was  filed  in  Baltimore  County  Court,  on  the  7th  of  June, 
1818,  by  Jo/m  W.  Ogden  and  wife,  to  recover  of  the  representatives 
of  their  late  uncle  Aminos  Ogden,  a  marriage  portion,  which  the  bill 
alleges,  he  had  promised  to  give  her.  After  the  answers  had  come 
in,  and  testimony  had  been  collected,  under  a  commission  issued 
from  that  tribunal,  the  case  w^as  removed  to  this  court  under  the 
act  of  1824,  ch.  196,  and-  the  proceedings  filed  here  on  the  15th 
of  May,  1826.  Some  time  after  which  the  case  was  brought  on 
for  a  final  decision.  All  the  circumstances  are  fully  and  carefully 
stated  by  the  Chancellor. 

bth  June,  1821. — Bland, Cliancellor. — This  case  standing  ready 
for  hearing,  and  the  solicitors  of  the  parties  having  been  heard,  the 
proceedings  were  read  and  considered. 

Laying  aside  such  of  the  allegations  of  the  parties  as  are  neither 
admitted  nor  sustained  by  proof,  with  the  irrelevant  testimony,  and 
the  case  is  this : — Amos  Ogden,  owing  to  some  unhappy  circum- 
stances, had  separated,  and  lived  apart  from  his  wife,  during  a 
period  of  about  thirty  years  before  his  death;  he  had  no  children; 
and  his  wife  survived  him.  At  the  time  of  his  death  he  had  a 
considerable  estate  ;  consisting  of  lands  lying  in  Baltimore  county, 
lands  in  the  Big-bend  of  Green  river  in  Kentucky,  and  some  personal 
property.  About  ten  years  before  his  death,  his  niece  JVancy  Ogden, 
then  about  seventeen  years  of  age,  was  brought  to  live  with  him. 
He  maintained  and  educated  her ;  and  she  managed  his  household 
affairs ;  in  which  situation  he  became  so  attached  to  her  as  to  con- 
sider her  as  his  adopted  child. 

Some  time  in  the  early  part  of  the  year  1817,  John  W.  Ogden, 
a  nephew  of  Amos\  and  a  cousin  of  JVancy^ s,  visited  and  address- 
ed lier ;  a  mutual  attachment  was  formed,  and  they  became 
engaged  to  be  married  at  a  convenient  time  thereafter.     On  the 


OGDEN  V.  OGDEN.  285 

first  of  May,  1817,  Amos  Ogden  bound  himself,  by  a  bond,  to  dis- 
tribute most  of  his  personal  property  ainong  Amos  Ogden  of  Stephen, 
JVancy  Ogden,  and  Sarah  Barket.  Under  these  circumstances,  on 
the  22d  of  IMay,  1817,  he  wrote  a  letter  to  his  brother  Benjamin 
Ogden,  the  father  of  John  W.  Ogden,  of  which  the  following  extract 
is  all  that  is  material  to  this  case  : — 
"  DeAr  Brother — 

"  With  joy,  on  the  17th  of  April  last,  I  received  your  favour  by 
your  son  Capt.  John  W.  Ogden,  together  with  my  land  papers  on 
Phillips,  and  have  to  regret,  that  I  have  been  compelled  in  giving 
you  so  much  trouble  in  the  arrangement  of  my  business.  But  mean 
to  compensate,  if  giving  the  largest  part  of  that  land  will  compen- 
sate, to  your  children.  I  shall  deed  to  your  daughter  Mary  T. 
Harpenden,  and  your  son  StepJien  T.  Ogden,  two  hundred  acres 
each,  and  the  remainder  to  your  son  John  W:  Ogden,  and  his 
expected  spouse  JVancy  Ogden  of  our  dear  brother  Stephen,  as  joint 
tenants,  and  to  the  survivor  in  fee  simple  for  ever.  I  have  got  to 
inform  you,  and  my  loving  sister  JVancy  Ogden,  your  dear  wife, 
that  my  dear  adopted  daughter  JVancy  Ogden  of  Steplien,  and  your 
son  John  W.  Ogden,  is  expected  to  be  married  some  time  between 
this  and  next  spring,  as  will  best  suit  his  return  to  Maiyland. 
I  can  tell  you,  my  dear  brother,  (though  my  heart  bleeds  at  the 
idea  of  her  leaving  me  forlorn  of  any  child  to  comfort  me  in  my 
advanced  age  of  life,)  I  rejoice  to  think,  that  she  is  agoing  to  be 
connected  to  so  worthy  a  man  as  your  son ;  and  I  have  no  doubt 
but  that  the  Lord  will  bless  them  in  their  afiections.  She  has  lived 
with  me  nearly  ten  years,  and  has  conducted  herself  in  such  an 
amiable  manner,  that  both  at  home  and  abroad  she  is  beloved. 
As  to  the  things  of  this  vrorld,  I  shall  bestow  on  her,  at  her  parting 
with  me,  about  six  thousand  dollars  worth  of  real  and  personal 
property  ;  and  at  my  death,  if  blessed  by  Divine  Providence,  at 
least  as  much  more.  You  and  I  do  not  agree  as  to  the  real  value 
of  the  land  in  the  Big-bend ;  I  should  be  loth  to  convey  that  land 
to  a  stranger  for  less  than  ten  dollars  per  acre.  You  will  recollect, 
brother,  that  there  is  a  great  many  people  in  Europe,  and  as  soon 
as  opportunity  will  admit,  will  emigrate  to  America." 

This  letter  was  endorsed  in  the  same  handwriting,  thus : — 
"  Copy  sent  Benj.  Ogden."*^ 

Amos  Ogden,  on  the  27th  of  IMay,  1817,  a  few  days  only  after 
he  had  written  this  letter  to  his  brother,  made  his  will,  in  which, 
among  other  things,  he  says : — "  And  whereas  it  is  agreed  and 


286  OGDEN  V.  OGDEN. 

expected,  that  my  nephew  John  Wesley  Ogden  of  Benjamin,  and 
my  niece  JVancy  Ogden  of  Stephen,  will  be  married  to  each  other 
some  time  early  this  ensuing  winter ;  therefore  I  give  unto  them 
the  said  John  Wesley  Ogden  nnd  JYancy  Ogden,  as  joint  tenants 
and  to  the  survivor  in  fee  simple,  seven  hundred  acres  of  land  in. 
the  State  of  Kentucky,  it  being  a  part  of  a  tract  of  land,  that  I 
purchased  from  a  certain  Philip  Phillips,  out  of  his  twenty-two 
thousand  one  hundred  and  seventy,,  on  the  north  side  of  Green 
River,  and  to  begin  at  the  upper  corner  of  said  survey,"  &c.  "  I  also 
give  to  them  the  said  John  Wesley  Ogden  and  JVancy  Ogden,  as  joint 
tenants  and  to  the  survivor  in  fee  simple  for  ever,  part  of  a  tract  of 
land  lying  and  being  in  Baltimore  county,  and  known  by  Taylor's 
Purchase,  it  being  part  of  that  part  of  Taylor's  Purchase  that  I 
bought  of  the  real  estate  of  William  Lux,  and  was  deeded  to  me 
by  Samuel  Moale,  Esqr.  as  trustee  by  order  of  the  Honourable  Chan- 
cellor, and  to  be  strictly  included  within  the  following  metes  and 
bounds,  courses  and  distances,"  &c.  "But  it  is  to  be  understood, 
and  so  my  will  is,  that  the  said  John  Wesley  Ogden  and  JVancy 
Ogden,  shall  not  be  entitled  to  the  said  part  of  Taylor's  Purchase, 
except  they  shall  pay,  or  cause  to  be  paid,  such  debts  or  balances 
of  such  debts,  and  to  such  persons  as  I  shall  charge  against  her 
the  said  JVancy  Ogden,  and  only  charged  and  credited  on  the  pages 
of  this  my  will,  and  that  in  my  own  handwriting,"  &c.  "And  whereas 
I  have  had  many  services  from  Ainos  Ogden  and  JYancy  Ogden  and 
Sarah  Burket,  and  to  secure  them  in  part  for  such  services,  I  have 
given  to  them  my  bond  for  the  conveyance  of  all  my  personal 
property  as  hereto  annexed,  and  dated  1817,"  &c. 

The  marriage  of  John  W.  Ogden  and  JYancy  Ogden  was  solem- 
nized on  the  25th  of  December,  1817,  and  they  lived  with  their 
uncle  until  his  death,  which  happened  on  the  10th  of  February 
following,  without  his  having  altered  or  revoked  the  will  he  had  so 
made  and  published.  The  original  letter  of  the  22d  of  May  was 
received  by  Benjamin  Ogden,  to  whom  it  was  directed ;  and  was 
sent  by  him  to  John  W.  Ogden,  but  miscarried,  and  has  been  lost. 
The  copy  now  produced  was  seen  in  the  hands  of  John  W.  Ogden 
as  early  as  the  month  of  August  previous  to  his  marriage  ;  but  how 
he  obtained  possession  of  it  does  not  appear ;  it  has  been  however 
proved  to  be  an  exact  copy,  and  altogether  in  the  handwriting  of 
the  late  Amos  Ogden. 

The  witnesses  speak  of  the  verbal  declarations  of  the  late  Jlmos 
Ogden  of  his  affection  for  his  niece  JVajicy ;  of  his  intention  to  give 


OGDEN  V.  OGDEN.  287 

her  a  marriage  portion ;  to  bestow  upon  her  some  of  his  property, 
or  to  provide  for  her  in  some  way  or  other ;  and  some  of  the  proofs 
describe  a  contract  essentially  different  from  that  deduced  from  the 
letter.  But  the  plaintiffs  cannot  be  allowed  to  use  the  letter  as 
evidence  of  a  contract  in  connexion  with  a  part  only  of  the  verbal 
testimony,  rejecting  the  rest.  The  whole  must  be  taken  together ; 
and  then  the  verbal  proof,  instead  of  sustaining,  materially  differs 
from  and  falsifies  the  terms  of  that  contract,  which  it  is  contended 
is  shewn  by  the  letter. (a) 

The  bill  rests  the  plaintiff's  pretensions  upon  the  ground,  that 
the  late  Amos  Ogden  induced  John  W.  Ogden  to  marry  JVancy  by 
a  promise,  that  he  would  give  her  twelve  thousand  dollars  as  a 
marriage  portion ; ,  and  refers  to  the  letter  of  the  22d  of  May,  and 
certain  other  circumstances,  as  evidence  of  that  promise.  The 
defendant  Amos  Ogden  admits,  that  the  copy  exhibited  is  in  the 
handwriting  of  the  late  Amos  Ogden  ;  but  all  the  defendants  posi- 
tively deny  having  any  knowledge  whatever  of  any  such  promise 
ox  inducement  to  the  marriage  as  is  charged  in  the  bill.  None  of 
the  defendants  have,  in  their  answers,  relied  upon  the  statute  of 
frauds  ;  but  it  has  been  mainly  insisted  upon  by  them,  in  argument, 
at  the  hearing. 

The  statute  of  frauds,  so  far  as  it  is  applicable  to  this  case,  is 
expressed  in  these  words  : — "  No  action  shall  be  brought  whereby 
to  charge  any  person,  upon  any  agreement  made  upon  consideration 
of  marriage,  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized. "(6) 

This  clause  was  at  one  time  supposed  to  embrace  mutual  pro- 
mises to  marry,  but  that  notion  has  long  since  been  abandoned, 
and  it  is  now  held  to  extend  only  to  agreements  to  pay  marriage 
portions,  or  to  such  cases  as  the  one  now  under  consideration. (c) 
The  word  "  agreement,"  it  has  been  settled,  must  not  be  loosely 
construed,  but  be  taken  in  its  proper  and  correct  sense,  as  signify- 
ing a  mutual  contract  on  consideration  between  two  or  more 
parties ;  the  whole  of  which,  the  consideration  as  well  as  the 
promise,  must  be  in  writing. (d) 


(ffl)  Cooper  V.  Smith,  15  East,  103.— (6)  29  Car.  2,  c.  3,  s.  4.— (c)  Harrison  v.  Cage, 
1  Ld.  Raym.  387.— ((Z)  Wain  v.  Warlters,  5  East,  10;  Stadt  v.  Lill,  9  East,  348; 
Randall  v.  Morgan,  12  Ves.  7-1. 


288  OGDEN  V.  OGDEN. 

In  cases  of  this  kind  the  defendant  may  be  compelled  to  answer 
fully  to  all  the  material  allegations  of  the  bill,  whether  he  insists 
upon  the  benefit  of  the  statute  of  frauds  or  not.  But,  if  the  statute 
is  relied  on,  there  can  be  no  decree  for  the  plaintiff,  although 
the  parol  agreement  should  be  admitted  by  the  answer ;  and,  con- 
sequently, to  obtain  relief,  in  such  case,  the  plaintiff  must  either 
prove  an  agreement  completely  in  writing,  or  such  a  part  perform- 
ance of  the  parol  agreement  admitted  by  the  answer,  as  will  take 
the  ease  out  of  the  statute.  But  if  the  defendant  does  not  say  any 
thing  about  the  statute,  then  he  must  be  taken  to  have  renounced 
the  benefit  of  it.(c) 

The  sole  question  is,  then,  whether  the  late  Amos  Ogdcn  did  sign 
an  agreement  in  writing  in  consideration  of  this  marriage,  binding 
himself  to  give  his  niece  JYancy,  a  marriage  portion  of  twelve  thou- 
sand dollars  as  is  alleged ;  or  whether  there  has  been  such  a  part 
performance  as  should  induce  the  court  to  enforce  a  compliance 
with  any  parol  agreement  to  that  effect. 

Marriage  alone  is  not  considered  as  a  part  performance  of  a 
contract  of  this  nature  ;(/*)  yet  if  a  person  writes  a  letter  promis- 
ing to  give  a  fortune  wuth  his  daughter  or  niece  to  a  man  if  he 
should  marry  her ;  and,  under  the  "encouragement  of  the  letter,  the 
man  does  marry  her,  he  shall  recover ;  the  agreement  having  been 
executed,  as  far  as  it  could  be,  on  his  part.(o-)  And  such  a  letter 
addressed  to  the  father,  or  a  friend  of  the  man,  on  his  behalf,  will 
be  as  obligatory  as  if  addressed  to  the  man  himself.  (A)  But  here, 
as  no  parol  agreement  has  been  admitted  or  proved,  it  will  be 
unnecessary  to  say  what  should  be  deemed  a  binding  partial  per- 
formance of  a  contract  in  consideration  of  marriage. 

The  whole  of  this  case  rests  upon  the  letter  of  the  22d  of  May, 
1817.  If  that  cannot  be  considered  as  an  agreement  within  the 
meaning  of  the  statute  of  frauds,  there  is  an  end  of  the  case. 
The  cases  in  which  letters  have  been  considered  as  constituting 
such  an  agreement,  have  gone  fully  as  far,  perhaps  farther,  than  a 
just  construction  of  that  statute  will  warrant.  They  all,  however, 
go  upon  the  principle,  that  the  court  must  be  satisfied  by  a  fair 
interpretation  of  the  letters,  that  they  import  a  concluded  agree- 
ment ;  or  afford  sufficient  materials  for  a  more  formal  agreement. 

(c)  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  567  ;  Cootb  v.  Jackson,  6  Ves.  37;  Blagdeii 
;•.  Bradbear,  12  Ves.  471 ;  Rowe  v.  Teed,  15  Ves.  .375.— (/)  Taylor  v.  Beech,  1  Ves. 
297.— (,f?)  Scairood  v.  Meale,  Prec.  Cha.  560.— (/()  Moore  v.  Hart,  1  Vern.  201 ; 
Wclford  V.  Bcczely,  1  Ves.  6 ;  S  .C.  3  Atk.  503. 


OCDEN  I'.  OGDEX.  289 

But  if  it  be  reasonably  doubtful,  whciher  wliat  passed  was  only  a 
treaty,  let  the  progress  towards  the  confines  of  an  agreement  be 
more  or  less,  or  if  it  be  doubtful,  whether  the  language  used  was 
intended  as  expressive  of  an  agreement,  the  court  will  not  decree 
the  specific  performance  of  that  which  appears  doubtful  as  a 
contract,  (i) 

But  this  letter  is  deficient  in  almost  every  substantial  particular. 
It  is  not  a  promise  in  any  sense.  The  writer  speaks  of  circum- 
stances which  have  occurred  ;  of  a  marriage  then  contemplated  ;  of 
what  he  intended  to  do ;  and  of  the  manner  in  which  he  meant  to 
dispose  of  his  propert}\  But  there  is  not  the  least  intimation  that 
he  had  brought  about  the  courtship,  or  had  encouraged  John  W. 
Ogden  to  marry  his  niece  by  any  promise  of  a  fortune  with  her. 
He  does  not  undertake,  agree,  or  oblige  himself  to  give  any  things 
He  tells  his  brother  what  he  means  to  do,  should  the  marriage  take 
place  ;  but  he  binds  himself  to  nothing ;  every  thing  is  reserved 
entirely  within  his  own  power.(j)  The  plaintiffs  had  resolved 
to  marry  before  this  letter  was  written :  therefore,  even  supposing 
it  had  been  shewn  to  John  W.  Ogden,  it  could  not  have  been 
the  inducement  upon  which  he  addressed  and  became  engaged 
to  marry  Ifancy  Ogden.  Whatever  were  his  hopes  and  expecta- 
tions, they  existed  prior  to,  and  independently  of  this  letter;  they 
could  not  have  arisen  in  any  respect  from  it.(/t)  There  is  no 
proof,  that  the  late  Amos  Ogden  had  induced  tlie  plaintiffs  to  enter- 
tain any  hopes  or  expectations  of  his  bestowing  any  thing  upon 
them  in  consideration  of  their  marriage.  After  they  had  become 
engaged,  he  then  expressed  his  entire  approbation,  and  he  then 
formed  his  liberal  determination ;  but  there  is  no  proof  that  he 
himself  communicated  it  to  them  prior  to  their  engagement.  And 
in  his  letter  to  his  brother,  there  is  nothing  which  gives  to  that 
determination  the  character  of  a  contract. 

Being  perfectly  satisfied  upon  these  grounds,  that  the  plaintiffs 
have  not  established  such  a  case  as  to  entitle  them  to  any  relief 
whatever,  I  deem  it  wholly  unnecessary  to  say  any  thing  in  rela- 
tion to  the  doctrine  of  satisfaction  and  election ;  or  how  far  the 
devise  to  John  W.  Ogden  and  his  wife,  and  their  having  actually 
elected  to  take  under  the  will,  is  to  be  considered  as  a  satisfac- 
tion and  election  in  bar  of  their  claim ;  since   it  is  my  opinion 

(i)  Huddleston  v.  Briscoe,  II  Ves.  583 ;  Stratford  v.  Bosworth,  2  Ves.  &  B.  M\  \ 
Allen  r.  Beiinct,  .">  Taunt.  173.— (7)  Randall  v.  More;an,  12  Ves.  07;  Morison  v 
Turnoiu-,  18  Ves.  175.- (/f)  Ayliffc  v.  Tracy,  2  P.  Will.  65. 

37 


290  REBECCA  OWINGS'  CASE. 

that  the  testator  had  not  bound  himself  to  them  by  any  contract 

whatever. 

Whereupon  it  is  decreed,  that  the  bill  of  complaint  be,  and  the 
same  is  hereby  dismissed  with  costs,  to  be  taxed  by  the  register. 


REBECCA  OWINGS'  CASE. 


A  person  who  is  actually  non  compos  mentis,  but  who  has  not  been  found  to  be  so 
under  a  writ  Be  Lunatico  Inquirendo,  may  be  permitted  to  sue,  as  co-plaintiff,  with 
another;  who  may  be  treated  as  his  committee,  and  required  to  give  bond  to 
account  for  any  money  directed  to  be  paid  to  him  lor  the  use  of  the  lunatic. 

The  granting  of  a  writ  De  Lunatico  Inquirendo  is,  in  some  measure,  discretionary 
with  the  Chancellor ;  and  may  be  dispensed  with  for  good  cause  for  the  benefit  of 
the  lunatic. 

Although  the  court  cannot  dispose  of  the  person,  or  estate  of  a  citizen  who  is  a 
lunatic,  without  his  having  been  found  to  be  so  by  a  regular  inquisition  ;  yet  it  may, 
under  particular  circumstances,  extend  its  protection  to  his  person  or  estate,  with- 
out any  such  previous  inquest. 

A  charge  of  an  annual  sum  upon  lands,  for  the  support  of  a  lunatic,  though  not  a 
rent,  is  an  incumbrance,  following  the  estate,  the  prompt  payment  of  which  may 
be  enforced,  either  as  against  the  person,  or  personal  property  of  the  holder,  or  by 
putting  a  receiver  upon  the  estate. 

This  bill  was  filed,  on  the  3d  of  September,  1819,  in  Baltimore 
County  Court,  by  Rebecca  Owings  and  John  Cromwell  and  Urath  his 
wife,  against  William  Owings,  to  recover  an  annual  sum  of  money 
given  to  Rebecca,  by  the  will  of  her  father.  After  the  defendant 
had  answered,  and  testimony  had  been  taken,  the  case  was  removed 
to  this  court,  under  the  act  of  1824,  ch.  196  ;  and  the  papers  were 
filed  here,  on  the  9th  of  February,  1827.  Some  time  after  which 
it  was  brought  before  the  court ;  and,  on  the  9th  of  June,  1827, 
the  case  was  referred  to  the  auditor  to  state  an  account  of  the 
amount  then  due  to  Rebecca  Owings.  The  auditor  made  and  filed 
his  report  accordingly,  on  the  14th  of  June.  The  circumstances 
of  the  case  are  sufficiently  stated  by  the  Chancellor,  in  delivering 
his  opinion. 

Ibth  June,  1827. — Bi^k^h, Chancellor. — This  case  standing  ready 
for  hearing,  the  solicitors  of  the  plaintiffs  having  been  heard,  and 

no  counsel  appearing  for  the  defendant,  the  proceedings  were  read 

and  considered. 

It  appears,  that  the  late  Samuel  Owings  left,  at  the  time  of  his 

death,  a  large  estate,  consisting  of  real  and  personal  property;  and, 


REBECCA  OWINGS'  CASE.  291 

among  others  of  his  children  who  survived  him,  are  two  of  the 
plaintiffs,  Rebecca  and  Urath,  and  the  defendant  William.  His 
daughter  Rebecca  being  unable,  by  reason  of  her  mental  imbecility, 
to  take  care  of  herself,  he  made  for  her  a  special  provision  by  his 
will,  in  connexion  with  the  devise  to  his  son  William  ;  to  whom 
he  gave  a  large  portion  of  his  real  estate.  "  To  hold  the  same," 
(these  are  the  words  of  this  testator,)  "  to  him  the  said  William, 
Owings,  his  heirs  and  assigns,  for  ever,  upon  these  express  condi- 
tions, that  he  and  they,  or  the  person  or  persons  to  whom  the  estate 
devised  to  tlie  said  William  OwingSy  may  eventually  pass,  maintain 
my  daughter  Rebecca,  or  pay  sixty  pounds  current  money  a  year 
for  her  maintenance  during  her  natural  life."  This  will  bears  date 
on  the  7th  of  May,  1803,  and  the  testator  must  have  died  soon 
after,  although  it  is  not  stated  when ;  because  it  appears  to  have 
been  proved  on  the  2oth  of  June,  in  the  same  year. 

Rebecca,  after  the  death  of  her  father,  continued  to  reside  with 
her  mother,  the  late  Deborah  Owings,  until  her  death,  which  hap- 
pened in  December,  1810 ;  and  was  taken  care  of  and  altogether 
maintained  by  her.  The  late  Deborah,  under  an  apprehension  that 
the  provision  made  by  Rebecca's  father  for  her  maintenance,  might 
not  be  regularly  applied,  or  that  it  might  be  inadequate,  by  her  will, 
also  made  provision  for  her  support.  After  some  specific  legacies, 
she  gives  all  the  residue  of  her  estate  to  her  eight  daughters  by 
name,  including  Rebecca,  to  be  equally  divided  ;  and  then  says  : — 
"  It  is  my  will  and  desire,  that  the  portion  of  my  estate,  above 
bequeathed  to  my  daughter  Rebecca  shall,  so  soon  as  convenient 
after  my  decease,  be  laid  out  by  my  executors,  herein  after  named, 
in  the  purchase  of  bank  stock ;  and  the  said  stock,  when  so  pur- 
chased, shall  be  held  in  the  name  of  my  said  daughter  Rebecca. 
And  I  do  hereby  authorize  and  empower  my  daughter  Urath 
Cromwell  to  demand  and  receive  the  interest  or  dividends  arising 
from  the  said  bank  stock,  and  to  apply  the  same  to  the  support 
and  maintenance  of  my  said  daughter  Rebecca  during  her  natural 
life ;  it  being  understood,  that  my  said  daughter  Rebecca  is  to  be 
removed  to  the  house  of  my  said  daughter  Urath  Cromwell,  and 
fi-om  and  after  the  decease  of  my  said  daughter  Rebecca,  I  do  give 
and  bequeath  the  bank  stock  aforesaid  unto  my  said  daughter 
Urath  Cromwell,  as  a  compensation  for  her  trouble  in  providing  for 
and  taking  care  of  my  said  daughter  Rebecca.^'  After  the  death  of 
this  testatrix,  Rebecca  went  to  reside  with  the  plaintiffs,  Cromwell 


292  REBECCA  OWL^^GS'  CASE. 

and  wife,  by  whom  she  has  been  taken  care  of  and  maintained  ever 
since. 

The  bill  does  not  introduce  Cromwell  and  wife  as  the  next  friends 
of  Rebecca^  but  merely  in  the  character  of  co-plaintiffs ;  and  then 
states,  "  that  Rebecca  being,  by  the  providence  of  God,  gifted  from 
her  birth  with  but  a  small  share  of  reason  and  judgment,  and  inca- 
pable, of  herself,  without  the  help  and  kindness  of  her  friends, 
to  take  care  of  herself,  or  to  manage  and  dispose  of  property." 
But  it  is  not  alleged,  nor  does  it  appear,  that  she  has,  by  any  judi- 
cial proceedings,  been  found  to  be  a  person  of  unsound  mind,  or 
non  compos  mentis.  Nor  do  the  plaintiffs  Cromioell  and  wife  show, 
or  claim  any  interest  whatever  in  the  matter  in  controversy. 

All  these  facts  are  admitted  by  the  defendant ;  and  he  also  admits, 
that  he  has  never,  at  any  time,  maintained,  or  paid  any  thing 
towards  the  maintenance  of  Rebecca.  But  he  alleges,  that  he  has 
always  been  ready  and  willing  to  maintain  her,  wdien  called  upon ; 
and,  that  he  would  have  done  so,  if  he  had  been  permitted.  The 
acquittance  from  his  mother,  which  he  has  exhibited,  and  seems  to 
place  some  reliance  upon,  may  be  at  once  laid  aside  as  having  no 
material  bearing  upon  this  case. 

The  plaintiffs,  by  their  bill,  pray  specially,  that  the  defendant 
William  Owivgs  may  be  compelled  to  pay  to  John  Cromwell  and 
Urath  his  wife,  for  the  use  and  benefit  of  the  said  Rebecca  Owings, 
■whatever  may  be  now  due,  or  may  hereafter  become  due  to  her 
under  her  late  father's  will :  and  generally,  that  the  plaintiffs  may 
have  such  other  relief  as  may  be  agreeable  to  equity  and  right. 

Thus  it  appears,  that  justice  is  demanded  in  behalf  of  one  of 
that  unfortunate  class  of  persons  who  are  held  to  be  most  peculiarly 
under  the  guardianship  of  this  court.  The  case  is  of  a  delicate 
and  anomalous  nature ;  yet  it  is  one  in  which,  it  is  quite  evident, 
that  relief,  by  some  means  or  other,  ought  to  be  gi'anted.  There 
are,  however,  difficulties  in  the  way,  which  must  be  overcome  or 
removed. 

The  first  of  them  which  presents  itself,  is  as  to  the  parties.  If 
all  those  who  have  an  interest  in  the  subject,  and  w^ho  ought  to 
have  been  brought  before  the  court,  have  not  been  made  parties,  it 
may  be  taken  advantage  of  by  demurrer,  by  plea,  or  at  the  hearing. 
On  the  other  hand,  if  a  person  be  made  a  defendant  unnecessarily, 
the  bill  may  be  dismissed  as  to  him,  and  proceed  as  to  the  others. (fl) 

(a)  2  Mad.  Chan.  174. 


REBECCA  OWIXGS'  CASE.  293 

The  predicament  of  this  case  is  different.  The  right  is  admitted 
to  be  exclusively  in  one  only  of  the  plaintiffs ;  and  the  special 
prayer  is,  that  the  relief  may  be  decreed  to  the  two,  who  have  no 
interest,  for  the  use  of  the  one  who  has  the  right.  Cromwell  and 
wife,  it  is  clear,  can  have  none,  or  a  very  remote  interest  in  the 
matter  now  in  controversy.  The  care  of  Reheccci's  person  was 
commended  to  them  by  the  last  will  of  her  mother.  But  it  is  not 
even  intimated,  that  they  have  been  thus  clothed  with  the  charac- 
ter of  her  testamentary  guardians ;  and  there  is  in  fact  not  the 
least  foundation  for  their  assuming  any  such  office.  They  are  not 
the  procheiri  amys  of  Rebecca,  because  they  do  not  so  present 
themselves ;  nor  do  they  state  her  to  be  an  infant,  J^eme  covert, 
or  lunatic  ;  or  to  be  in  that  situation  in  which  they  would  be  author- 
ized to  accompany  her  into  court  as  prochcin  amys.  It  may  be 
inferred  from  what  is  said  in  one  of  the  books  of  practice,  that  a 
lunatic  may  sue  by  prochein  amy  ;[b)  the  expressions  of  the  com- 
piler are,  however,  unwarranted,  in  that  sense,  by  any  adjudged 
case  whatever.  But  according  to  the  loose  proceedings  of  the  Land 
Office,  it  seems,  that  a  warrant  of  resurvey  was  obtained  by  his 
next  friend  for  the  benefit  of  one  who  was  then  non  compos  mentis, 
although  not  found  to  be  so  by  inquisition,  (c)  A  lunatic,  that  ia, 
one  who  has  been  found  and  returned  to  be  non  compos  mentis,  can 
only  sue  by  his  committee. [d)  Rebecca  has  not  been  judicially 
declared  a  lunatic ;  and  consequently  she  can  have  no  committee 
by  whom  to  institute  any  suit. 

It  follows,  therefore,  that  if  there  are  no  other  principles  upon 
which  Cromwell  and  wife  may  be  associated  in  this  suit  with 
Rebecca,  no  relief  can  be  granted  upon  this  bill  as  it  now  stands, 
but  it  must  be  amended  or  dismissed. (e) 

Generally  and  technically  speaking,  those  only  are  called  luna- 
tics who  have  been  so  found  and  returned.  Without  an  inquest 
and  return  thereon,  no  one  can  be  judicially  treated  as  a  lunatic, 
and  be  debarred  of  his  liberty,  or  have  the  management  of  his  pro- 
perty taken  from  him.  The  power  to  divest  a  citizen  of  his  per- 
sonal freedom  and  of  his  property  is  one  of  a  most  extraordinary 
and  delicate  nature ;  and  should,  .therefore,  never  be  exercised 
without  observing  every  precaution  required  by  the  law.  But, 
although  this  court  will,  in  no  case,  undertake  to  go  all  lengths ; 


(6)  1  Harr.  Pra.  Chan.  773.— (c)  Land  H.  A.  Io0.-^{d)  2  Mad.  Chan.  175;  1  Ilarr. 
Pra.  Chan.  762.— (e)  The  King  of  Spain  v.  Machado,  4  Russ.  225. 


294  REBECCA  OWINGS'  CASE. 

and  to  confine  or  dispose  of  the  person  of  any  one,  as  a  lunatic, 
until  he  has,  upon  solemn  inquisition,  been  found  to  be  non  compos 
mentis ;  yet  it  will  grant  relief  and  protection  to  such  persons 
without  and  previous  to  their  being  adjudged  to  be  non  compos. 
On  a  proper  application,  the  granting  of  a  writ  de  lunatico  inqui- 
■rendo  is  generally  a  matter  of  course  ;  but  still  it  is  discretionary. 
If  the  Chancellor  sees,  that  the  interests  of  the  subject  of  it,  may 
be  promoted,  or  his  health  benefited  by  withholding  or  suspending 
it,  he  may  do  so.  The  object  of  the  Chancellor's  authority  in 
matters  of  lunacy  is  to  protect  and  take  care  of  citizens,  who  are 
intellectually  unfortunate  ;  hence,  it  has  been  always  so  exercised 
as  most  effectually  to  attain  that  object.(y)  If  the  execution  of  a 
commission  of  lunacy  would  in  all  probability  have  a  tendency  to 
confirm  the  lunatic  in  his  insanity ;  or  if  his  estate  or  income  is  too 
small  to  defray  the  expense  of  its  execution  ;  or  if  the  object  in 
view  may  be  attained  as  safely  and  as  fully  in  all  respects  without 
it ;  the  execution  of  the  inquisition  may  be  suspended  or  dispensed 
with  altogether.  In  short,  there  are  many  instances  in  w'hich  the 
court  will  recognise  and  act  upon  the  fact,  that  a  person  is  in  a 
partial  or  complete  state  of  insanity,  without  requiring  that  fact  to 
be  established  by  a  return  to  a  writ  de  lunatico  inquirendo.{g) 

I  am  of  opinion,  that  this  may  be  considered  as  one  of  those 
instances.  The  pension  given  to  Rebecca  by  her  father  is  not  more 
than  sufficient  for  her  comfortable  maintenance  ;  there  is  none  to 
spare.  It  should  certainly  not  be  involved  in  any  expense  that 
can  be  avoided.  The  court  is  now  only  called  on  to  enforce  its 
payment  and  application  ;  which  may  be  as  safely  done  now  as 
after  an  inquisition  has  been  taken ;  and  certainly  with  more 
advantage  and  economy  to  Rebecca.  I  shall,  therefore,  proceed 
without  requiring  Rebecca  to  be  formally  declared  a  lunatic,  and  a 
committee  of  her  person  and  estate  to  be  appointed. 

It  is  stated  and  admitted,  that  the  plaintiff  Rebecca  is,  in  fact, 
so  far  insane  as  to  be  incapable  of  managing  her  property.  Her 
late  parents  have  made  a  provision  for  her  maintenance.  But  to 
order  the  property  they  gave  her  to  be  paid  into  her  own  hands 
would  not  be  extending  to  her  proper  and  adequate  relief  and  pro- 

(/)  Ex  parte  Tomlinson,  1  Ves.  &.  Bea.  57  ;  Brodie  v.  Barry,  2  Ves.  &  B.  36. 
(g)  Sheldon  v.  Aland,  3  P,  Will.  Ill,  note;  Lord  Donegal's  ca.se,  2  Ves.  408  ;  Ma- 
chin  V.  Salkeld,  Dick.  634 ;  Bird  v.  Lefevre,  4  Bro.  C.  C.  100  ;  Eyre  v.  Wake,  4  Ves. 
795 ;  Ex  parte  Cranmer,  12  Ves.  446 ;  Wartiiaby  v.  Wartnaby,  Jac.  Rep.  377 ;  1  Mont. 
Dig.  39  ;  Shelf.  Lun.  &  Idiots,  436. 


REBECCA  OWINGS'  CASE.  295 

lection ;  or  rather  it  would  amount  to  an  absolute  frustration  of  the 
good  intentions  of  her  parents.  The  relief  must,  therefore,  be  so 
conducted  as  to  accomplish  the  object  in  view;  that  is,  the  main- 
tenance of  Rebecca.  This  cannot  be  done  without  the  instrumen- 
tality of  a  trustee,  who  may  be  charged  with  the  receipt  and  appli- 
cation of  the  fund  that  has  been  appropriated  for  that  purpose. 
One  of  her  provident  parents  has  made  a  selection  of  trustees  for 
her ;  which,  so  far,  seems  to  be  conceded  to  have  been  a  judicious 
one.  I  shall,  therefore,  confirm  and  act  upon  it.  Not  because  I 
recognise  the  least  right  in  the  late  Deborah  Owings  to  appoint  a 
trustee  or  guardian  of  the  person  or  property  of  her  daughter ;  but, 
because  I  believe  it  to  be  my  official  duty  to  protect  persons  in  the 
condition  in  which  I  find  Rebecca  ;  and  to  do  so  effectually,  I  must 
appoint  and  use  a  trustee  or  agent.  And  Cromwell  and  wife  hav- 
ing been  recommended  by  one  of  the  parents  of  Rebecca,  (for  so  I 
consider  what  is  said  in  the  will  of  the  late  Deborah,)  as  suitable 
trustees ;  and  they  having  assumed  that  character ;  with  which, 
upon  a  proper  application  I  might  have  clothed  them ;  I  shall  now 
sanction  and  confirm  it  to  them ; — upon  the  ground  that  this  court 
always  retrospectively  sustains  and  ratifies  that  which  has  been 
usefully  and  fairly  done ;  and  which  it  would  have  ordered  to  be 
done.  I  shall  require  John  Cromwell  to  give  bond  for  the  faithful 
application  of  the  money  I  shall  decree  to  Rebecca,  and  order  to  be 
placed  in  his  hands  for  her  use,(/i)  And  I  shall  accordingly  regard 
this  suit  as  having  been  instituted  by  Rebecca  Owings,  together 
with  John  Cromwell  and  Urath  his  wife  as  trustees  of  Rebecca,  and 
thus  pass  over  this  first  difficulty,  as  to  the  proper  parties. 

The  next  question  is,  what  is  the  nature  of  the  bequest  of  the 
late  Samuel  Owings  to  his  daughter  Rebecca  9  The  defendant  seems 
to  have  a  notion,  that  his  father  gave  him  the  right  to  take  charge 
of  the  person  of  his  sister,  and  to  maintain  her  as  he  thought  pro- 
per. But  the  devise  conveys  no  such  idea;  and  if  it  did,  it  is 
clear,  that  although  a  father  may  appoint  a  guardian  of  his  infant 
children ;  yet  he  cannot  dispose  of  the  custody  of  his  adult  chil- 
dren whether  of  sound  mind  or  non  compos  mentis,  in  any  way 
whatever. (i)  It  is  evident,  however,  that  the  testator  had  no 
reference  to  the  custody  or  the  place  of  residence  of  his  daughter ; 
his  expressions  show,  that  his  thoughts  w^ere  directed  exclusively 
to  her  maintenance,  in  whatever  place  she  might  dwell.     And  that 

(/t)  Bird  V.  Lefevre,  4  Bro.  C.  C.  100.— (i)  Ex  parte  Ludlow,  2  P.  Will.  635. 


296  REBECCA  OWINGS'  CASE. 

maintenance  he  endeavours  to  make  as  unalterably  and  imperisha- 
bly  certain  as  the  nature  of  things  would  admit.  His  son  William 
was  to  take  the  estate  he  gave  him  expressly  upon  the  condition, 
that  he  maintained  Rebecca.  William  has  taken  the  estate  ;  and, 
consequently,  he  has  assumed  this  duty  to  Rebecca,  and  has  become 
personally  bound  to  her,  in  consideration  of  the  estate  he  has  thus 
taken  and  now  enjoys.  But  this  condition  is  not  confined  to  Wil- 
liam Owings  personally  and  only ;  it  is  extended  to  "  the  person 
or  persons  to  whom  the  estate  may  eventually  pass."  It  is  a  con- 
dition, that  runs  with  the  land  ;  and  is  a  continuing  charge  upon 
it.(^-)  It  is  an  incumbrance  to  which  the  land  is  liable  in  the 
hands  of  every  one,  (not  having  a  better  title  than  the  devisor,) 
during  the  life  of  Rebecca.  This  charge  upon  the  land  devised  to 
Willia7n  Owings  cannot  be  deemed  a  rent  of  any  description ;  nor 
can  it  properly  be  considered  as  an  annuity  ;  because  by  an  annuity 
the  person  alone  is  charged ;  no  land  is  encumbered  with  it.  But 
here  the  land  is  charged,  and  the  person  only  in  respect  of  the 
enjoyment  of  that  land.  This  devise,  therefore,  has  given  to 
Rebecca  2i  particular  interest  in  the  land.(/)  It  has  imposed  upon 
it  an  incumbrance,  which  follows  it  into  the  hands  of  William  and 
every  other  holder  during  the  life  of  Rebecca.  It  is  a  kind  of 
legacy,  the  punctual  payment  of  which  this  court  will,  and,  per- 
haps, only  can  enforce. 

It  is  then  clear,  that  these  plaintiffs  are  properly  here ;  and  that 
they  ought  to  obtain  relief:  the  mode  in  which  it  should  be 
granted  is  the  only  remaining  enquiry.  Under  the  general  prayer 
the  court  is  left  free  to  adopt  any  mode  by  which  it  can  most  rea- 
dily and  effectually  administer  that  relief  which  the  equity  of  the 
case  demands.  Where  the  relief  asked  is  maintenance  ;  a  subsist- 
ance  for  one  who  is  utterly  unable  to  take  care  of  herself;  and  it 
is  determined  to  be  equitably  due ;  the  court  should,  if  practicable, 
leave  no  room  to  escape  from  or  palter  with  its  mandates.  When 
helplessness  is  to  be  furnished  with  bread,  the  judgment  which 
awards  it  should  be  clear,  prompt,  and  easily  enforced. 

According  to  the  common  law,  if  a  party  brought  his  lorit  of 
annuity,  and  obtained  judgment,  that  judgment  stood  as  a  security 
as  well  for  the  amount  then  due  as  for  that  which  should  thereafter 

(/c)  The  Mayor  of  Cone;leton  v.  Pattison,  10  East,  130 ;  PowelPs  Case,  Nelson, 
202  ;  Elliot  V.  Merryman,  Barn.  Ch.  Rep.  82.— (Z)  Clark  v.  Rcss,  Dick.  529;  Few. 
Mort.  221,  10.32 ;  Co.  Litt.  4,  122  ;  West  v.  Bi&coc,  6  H.  U  J.  460  ;  Attorney  General 
V.  Christ's  Hospital,  3  Bro.  C.  C.  165. 


REBECCA  OWINGS'  CASE.  297 

become  clue ;  and  the  payment  of  the  future  instalments  might  be 
enforced  hy  fieri  facias  sued  out  within  the  year  after  every  day  of 
payment,  though  it  might  be  many  years  after  the  judgment. (?7i) 
And  in  an  action  of  debt  upon  a  bond  conditioned  for  the  payment 
of  certain  sums  of  money  on  certain  days  by  way  of  instalments ; 
or  upon  a  bill  in  equity  for  the  arrears  of  an  annuity ;  under  a 
judgment  for  the  penalty,  or  decree  for  the  annuity,  it  was  ruled, 
that  the  plaintiff  should  be  allowed  to  levy  by  execution  the  sum 
found  due  at  the  trial;  and  that  the  judgment  or  decree  should 
stand  as  a  security  for  the  future  arrears,  with  liberty  to  apply 
from  time  to  time  to  sue  out  fresh  executions  thereon. (?j)  So  in 
this  court,  wdiere  alimony,  or  the  payment  of  a  certain  sum  annu- 
ally had  been  decreed ;  the  payments  as  they  became  due  were 
enforced  on  petition  and  order  in  a  summary  way.(o)  And  where 
an  estate  has  been  mortgaged,  the  tenant  for  life  in  possession  will 
be  ordered  to  keep  down  the  interest ;  and  if  he  does  not  do  so,  a 
receiver  may  be  put  upon  the  estate  with  directions  to  take,  and 
apply  the  rents  and  profits  to  the  interest  as  it  becomes  due  on  the 
mortgage,  and  to  pay  the  surplus  to  the  tenant.(7j) 

Upon  these  suggestions  and  analogies,  I  shall  decree,  that  Wil- 
liam Owings  forthwith  bring  into  this  court,  or  pay  to  the  plaintiff 
John  Cromwell^  the  whole  amount  now  due,  with  interest  on  each 
annual  sum  as  it  became  due  until  brought  in  or  paid ;  and  let  the 
decree  stand  as  a  security  for  what  may  hereafter  become  due. 
The  payment  of  the  several  sums,  as  they  may  hereafter  become 
due,  may,  on  petition,  be  enforced  by  a  summary  proceeding, 
either  as  against  the  person  or  personal  property  of  William 
Owings  ;  and  should  he  fail  to  pay  the  whole  amount  now  decreed, 
or  which  may  hereafter  become  due,  I  may  be  induced,  on  a  proper 
application,  to  put  a  receiver  upon  the  estate  devised  to  him,  with 
authority  to  take  and  apply  the  rents  and  profits  of  it  under  the 
directions  of  the  court. 

The  devise  gives  sixty  pounds  a  year ;  but  does  not  distinctly 
say  from  what  date  it  is  to  be  computed.  This  charge,  from 
its  nature,  should  take  effect  from  the  day  of  the  death  of  the 
testator  ;(9)  but  as  the  date  of  that  event  has  not  been  clearly 
shewn,   I   shall  direct  the  years  to  be   reckoned  from  the  25th 


(m)  2  Inst.  471 ;  Gilb.  Excu.  12.— (n)  Ridgely  t;.  Lee,  3 11.  &  McH.  94 ;  Marshall  v. 
Thompsou,  2  Mun.  412  ^  Sparks  v.  Ganigues,  I  Bin.  152;  Kanclaugh  v.  Hayes, 
1  Vern.  190.— (o)  Darne  y.  Catlett,  6  H.  &t  J.  476  ;  Uvwitt  r.  Hewitt,  ante,  101. 
(j>)  Pow.  Mort.  300,  note.— (-?)  2  Mad.  Chan.  S3. 

^8 


298  REBECCA  OWINGS'  CASE, 

of  June,  1803,  the  day  on  which  the  testator's  will  was  authen- 
ticated. 

Whereupon  it  is  decreed^  that  the  report  of  the  auditor  be  con- 
firmed ;  that  William  Owings  forthwith  pay,  or  bring  into  this 
court  to  be  paid  unto  John  Cromwell,  for  the  use  of  Rebecca 
Owings,  the  sum  of  $6476  91,  together  with  legal  interest  on 
$3834  67,  part  thereof,  from  the  13th  day  of  the  present  month, 
until  brouo-ht  in  or  paid ;  that  John  Cromwell  and  Urath  his  wife 
are  hereby  appointed  trustees  of  the  property  of  Rebecca,  with  full 
authority  to  demand,  receive  and  apply  the  same  towards  her  main- 
tenance and  for  her  benefit,  under  the  directions  of  this  court ; 
which  property  and  money  they  shall  deliver  up,  pay  or  bring  into 
court,  as  may  be  required ;  and  they  shall  render  an  account 
thereof  on  oath  to  this  court  from  time  to  time,  at  least  once  in  each 
and  every  year  during  the  life  of  Rebecca,  or  until  the  further  order 
of  this  court ;  that  Jo/m  Cromwell,  before  he  and  the  said  Urath 
his  wife  shall  enter  upon  the  duties  of  this  trust,  give  bond  to  the 
State,  in  the  penalty  of  fifteen  thousand  dollars,  wuth  surety  to  be 
approved  by  the  Chancellor,  for  the  faithful  performance  of  the  trust 
reposed  in  them  by  this  or  any  future  decree  or  order  in  the  pre- 
mises ; — and  that  the  defendant  pay  to  the  plaintiffs  their  full  costs, 
to  be  taxed  by  the  register. 


Upon  the  application  of  the  plaintiffs  z.  fieri  facias  was  on  the  3d 
of  April,  1828,  ordered  in  general  terms  on  this  decree,  but  it  does 
not  appear  that  it  was  ever  executed  or  returned.  On  the  6th  of 
January  1830,  John  Cromwell,  one  of  the  plaintiffs,  by  his  petition 
stated,  that  Rebecca  Owings  died  on  the  19th  of  August  1828 ; 
that  he  had  maintained  her  in  his  house,  with  every  comfort,  dur- 
ing eighteen  years  prior  to  her  death ;  and  had  often  attended  her 
in  his  professional  character  of  a  physician  ;  that  he  had  expended 
considerable  sums  of  money  in  fees  to  lawyers,  and  costs  of  suit  in 
defending  her  rights  and  interests ;  and  that  no  part  of  the  amount 
decreed  to  her  had  been  paid.  Upon  which  he  prayed,  that  the 
whole  amount  of  his  account  might  be  ordered  to  be  paid  out  of 
the  sum  of  money  so  decreed  to  the  late  Rebecca  Owings. 

12th  January,  1830. — Bland,  Chancellor. — The  sum  decreed  to 
the  late  Rebecca  Owings  should  have  been  paid  to  her  trustees  as 
directed  by  the  decree  ;  but  that  not  having  been  done,  as  is 
alleged  by  this  petitioner,  and  the  case  having  abated  by  the  death 
of  Rebecca,  it  must  be  regularly  revived  before  the  decree  can  be 


CUNNINGHAM  v.  BROWNING.  399 

enforced  for  the  benefit  of  any  one.  On  the  death  of  Rebecca  all 
the  rights  and  authority  of  the  petitioner  John  Cromwell^  as  trustee, 
immediately  ceased  for  every  purpose  whatever ;  except  that  of 
closing  his  accounts  and  delivering  over  the  property,  if  any,  in  his 
hands,  to  the  legal  representatives  of  Rebecca.  But  it  does  not 
appear,  that  this  petitioner,  who  was  appointed  by  the  decree  as 
the  trustee  of  Rebecca,  ever  gave  bond  or  qualified  as  required. 


The  case  w^as  afterwards  revived  and  the  amount  ordered  to  be 
paid  to  John  Cromwell.,  which  order  on  appeal  was  affirmed,  and 
so  the  case  was  closed. 


CUNNINGHAM  v.  BROWNING. 

The  manner  of  obtaining  a  patent  grant  for  land.  The  objects  of  an  inquest  of  office  ; 

the  cases  in  which  it  is  required  ;  and  the  mode  of  proceeding  by  caveat  to  prevent 

the  emanation  of  a  patent  in  England  and  in  Marjdand. 
The  origin  of  the  Land  Office,  considered  as  a  branch  of  the  Chancery  Office ;   the 

jurisdiction  of  the  Judges  of  the  Land  Office,  under  the  Proprietary  Government, 

and  of  the  Chancellor,  at  present,  in  relation  to  proceedings  in  the  Land  Office. 
The  five  several  kinds  of  Land  Warrants. 
The  first  designation  of  the  land  aimed  at  by  one  who  wishes  to  purchase  from  the 

State,  from  the  date  thereof,  by  a  special  warrant  in  the  Land  Office,  or  by  a  special 

location  on  the  surveyor's  book,  or  by  a  certificate  of  survey,  gives  an  incipient 

title  against  all  others. 
The  right  thus  acquired  is  not  an  equitable  interest ;  but  an  imperfect  legal  title, 

which,  when  completed,  by  a  patent  gi'ant,  is  considered  as  a  legal  title,  by  relation 

from  the  date  of  the  incipient  title. 
A  special  warrant,  or  a  special  location,  to  be  deemed  an  incipient  title,  must  so 

describe  a  space  or  area  of  land,  as  to  distinguish  it  from  all  other  tracts. 

It  appears  that  James  Cunningham,  as  assignee  of  two  common 
warrants,  on  the  31st  of  October,  1826,  placed  them  in  the  hands 
of  the  surveyor  of  Allegany  county  for  execution;  who  on  that 
day,  in  pursuance  of  the  rules  and  orders  established  by  the  gov- 
ernor and  council,  noted  down  in  his  book  the  receipt  of  them, 
and  designated  the  place  at  which  Cunningham  desired  to  have 
them  located,  in  these  words  :  "  I  hereby  locate  the  within  warrants 
for  Jaincs  Cunningham  at  a  large  spring  on  the  west  side  of  the 
North  Fork  of  the  Little  Crossings,  and  near  a  large  oak  tree, 
marked  J.  C. ;  and  adjoining  the  south  corner  of  lot  number  2370." 
By  virtue  of  these  warrants,  on  the  third  day  of  November  follow- 
ing, the  surveyor  laid  out  and  surveyed  a  tract  of  land  for  Cunning- 


300  CUNNINGHAM  v.  BROWNING. 

ham,  containing  two  thousand  four  hundred  and  eighty  acres  and 
one-half  acre,  to  be  held  by  the  name  of  Cheviot  Bale.  The 
certificate  of  survey  was  returned  to  the  Land  Office  on  the  8th  of 
January,  1827,  and  on  the  same  day  the  caution  money  was  paid. 

On  ihejirst  day  of  November,  1826,  Meshak  Browning  obtained 
from  the  Land  Office,  a  special  warrant  for  two  hundred  and  ten 
acres  of  land,  lying  in  Allegany  county,  in  which  warrant  the 
description  of  the  location  of  the  land  is  expressed  in  these  words  : 
"  On  or  near  the  head  of  the  North  Fork  of  the  Little  Crossings, 
and  at  the  large  spring,  called  Browning''s  Spring,  and  also  near 
a  place  called  Patke's  Pane,  and  near  the  foot  of  the  Meadow 
Mountain."  By  virtue  of  this  warrant  the  surveyor  says,  in  his 
certificate,  bearing  date  on  the  fifteenth  day  of  the  same  month, 
that  he  had  surveyed  a  tract  to  be  held  by  the  name  of  Browning's 
Hunting  Ground,  containing  two  hundred  and  ten  acres,  the  loca- 
tion of  which  he  thus  describes  :  "  Beginning  in^the  centre  between 
two  bounded  sugar-trees  near  the  head,  and  on  the  west  side  of  the 
North  Fork  of  the  Little  Crossings,  and  south  twenty-six  degrees 
and  three-fourths  of  a  degree,  west  al^out  eight  perches  from  the 
head  of  a  large  spring,  called  Browning'' s  Spring,  and  south  five 
degrees  and  one-half  degree,  east  about  eight  and  one-half  perches 
from  a  large  white-oak  tree  marked  J.  C,  and  running  thence  north 
sixty-three  and  one-fourth  of  a  degree,  east  forty-five  perches  to 
a  bounded  hemlock  tree  standing  at  the  Panthers'  Pen,  north  sixty- 
nine  degrees  ;"  and  so  on,  describing  a  tract  lying  in  the  form  of  a 
narrow  oblong  ficjure,  in  about  the  middle  of  the  one  side  of  which 
are  found  the  several  marks  which  denote  the  place  of  beginning. 
This  certificate  was  returned  to  the  Land  Office  on  the  23d  of 
March,  1827,  and  on  the  same  day  the  caution  money  was  paid. 

On  the  third  day  of  April  following,  a  caveat  was  entered  upon 
this  certificate  of  Browning'' s  by  James  Cunningham.  An  order 
was  passed  appointing  a  day  for  hearing,  authorizing  the  parties 
to  take  testimony  before  any  justice  of  the  peace,  on  giving  notice 
as  usual,  and  directing  the  surveyor  to  lay  dow'n  and  return  a  plot 
of  the  lands.  Under  this  order  a  plot  was  accordingly  returned, 
upon  which  the  pretensions  of  both  parties  were  laid  down  without 
any  counter  location  from  eitlier;  from  which  it  appears  that 
Browning^s  Hunting  Ground  extends  entirely  across  Clieviot  Dale. 
Some  depositions  were  also  taken  and  returned ;  but,  as  they 
develope  nothing  of  any  importance,  it  is  deemed  unnecessary  to 
state  the  facts  proved  by  them. 


CUNNINGHAM  v.  BROWNING.  301 

20//i  Juney  1827. — Bland,  Chancellor.- — This  caveat  standing 
ready  for  hearing,  and  the  argument  of  the  caveator's  attorney 
having  been  heard,  and  the  notes  of  Browning^s  counsel  having 
been  read,  the  proceedings  were  thereupon  read  and  considered. 

The  Chancery  Court  of  England  has  always  been  considered  as 
the  prototype  of  that  of  IMaiyland ;  and,  that  the  one  has  been  in 
fact  the  exemplar  of  the  other,  in  almost  every  respect,  might  be 
shewn  by  a  comparison  of  the  various  offices,  powers,  and  juris- 
dictions of  each  of  them.  The  chancer}^  of  Marjdand,  as  well  as 
of  England,  was  originally  resorted  to  as  an  Officina  Brevium. 
In  cases  of  scire  facias^  to  repeal  letters  patent,  and  in  some  others, 
in  which  the  Chancellor  sits  as  a  court  of  common  law,  his  authority 
is  substantially  the  same  in  Mar}land  as  in  England.  As  mere 
courts  of  equity',  there  is  scarcely  any  difference  between  the  Court 
of  Chancery  of  Mar^-land,  and  that  of  England.  And  the  form  of 
proceeding  by  caveat^  according  to  which  the  Chancellor  is  now 
called  upon  to  act,  is  one  which  has  been  derived  from  the  chancery 
of  England ;  and  is  regulated  by  forms  and  principles  similar  to 
those  by  which  the  English  mode  of  proceeding  by  caveat  is 
governed.  It  may  be  well,  therefore,  for  the  better  under- 
standing of  this,  and  all  similar  cases,  briefly  to  review  the  mode 
of  obtaining  a  patent  grant  for  land  in  England,  and  in  this 
State ;  and^the  general  doctrine  in  relation  to  caveats^  before  the 
merits  of  the  case,  now  before  the  court,  are  taken  up,  considered 
and  determined. 

The  king  of  England  being  invested  with  a  limited  sovereignty 
over  the  realm,  all  public  property  belongs  to  him  in  that  capacity; 
and  all  lands  are  said  to  be  held  directly  or  indirectly  of  him.  The 
king  is  also  invested  with  authority  to  create  corporations,  to  grant 
franchises,  and  to  dispose  of  any  lands,  or  public  property,  at  his 
pleasure.  Anciently,  a  large  proportion  of  the  king's  revenue  arose 
from  lands  granted  by  him ;  as  to  which  the  Chancellor  and  Trea- 
surer had  checks  upon  one  another.  The  Chancellor  made  out  all 
patents  for  lands ;  for,  no  real  estate  was  to  be  parted  with  by  the 
crown  without  the  great  seal;  but  then  the  rents  of  such  tenures 
were  to  be  accounted  for  before  the  Treasurer. (a)  The  granting 
of  a  franchise,  or  of  any  estate  of  inheritance  in  lands,  could  only 
be  done  by  a  regular  patent  under  the  great  seal,  specifying  par- 
ticularly the  franchise,  or  estate  granted.     But  the  same  degree  of 

(a)  Gilb.  Exch.  9,  10. 


302  CUNNINGHAM  v.  BROWNING. 

solemnity  and  caution  was  not  required  in  disposing  of  all  other 
things  ;  for,  the  king  might  dispose  of  a  chattel  under  his  privy- 
seal ;  or  he  might  make  a  lease  for  years  of  any  crown  lands 
without  a  patent  under  the  great  seal. (6) 

But,  after  any  land  had  been  once  legally  granted  by  the  king, 
it  could,  in  no  case,  be  fully  and  particularly  revested  in  him,  so 
as  again  to  become  the  subject  of  a  new  patent  to  an  individual, 
without  office  found,  or  something  equivalent  to  an  inquest  of 
office  ;  for  it  is  said  to  be  a  part  of  the  liberty  of  England,  that  the 
king's  officers  should  not  enter  upon  other  men's  possessions,  till  a 
jury  had  found  the  king's  title.  Therefore,  where  the  king's  title 
appeared  on  record,  his  officers  might  enter  without  any  office 
found ;  as  where  the  lands  were  held  of  the  crown  and  the  tenant 
died  without  heirs,  the  officers  of  the  king  might  enter;  because 
the  tenure  whereby  the  king's  title  appeared  was  upon  record.  So 
by  the  common  law,  where  lands  belong  to  nobody,  the  king's 
officers  may  enter ;  because  by  the  law,  the  land  is  in  the  crown  ; 
for  the  law  entitles  him  where  the  property  is  in  no  man  ;  but  if 
any  body  else  were  in  possession,  the  lands  could  not  be  divested 
without  matter  of  record.  There  are  two  kinds  of  offices,  one  an 
office  entitling  J  that  vests  the  estate  and  possession  of  the  land  in 
the  king  where  he  had  but  a  right  or  title  before ;  and  another 
called  an  office  of  instruction,  and  that  is  when  the  estate  of  the 
land  is  lawfully  in  the  king  before,  but  the  particularity  of  the  land 
does  not  appear  of  record.  And  therefore,  although,  where  the 
king  is  entitled  by  matter  of  record,  there  is  no  need  of  an  office 
to  entitle  him ;  yet  there  was  always  an  office  of  instruction  found, 
in  order  that  the  land  might  be  distinctly  ascertained  and  speci- 
fied ;  for  until  that  was  done,  although  the  title  was  in  him,  he 
was  prohibited,  by  statute, (c)  from  making  any  grant  of  them  to  an 
individual.  And  therefore,  in  all  cases,  where  it  is  proposed  to 
place  any  lands,  which  had  been  held  by  an  individual  whose  right 
had  been  confiscated  or  forfeited ;  or  whose  estate  was  escheatable, 
because  of  its  being  such  as  he  was  incompetent  to  hold ;  or 
whose  title  had  escheated,  because  of  his  death  intestate  with- 
out heirs,  it  was  deemed  necessary  to  have  the  facts  found  by 
an  inquest  of  office  taken  under  a  commission,  or  a  writ  of 
escheat,  a  diem  clausit  extremum,  a  mandamus,  a  melius  inqui- 
rendo,  or  the  like  ;  or  by  an  inquest  of  office  taken  by  the  escheator 

{b)  Gilb.  For.  Rom.  12.-(c)    S  H.  6,  c.  16,  and  18  H.  6,  c.  6. 


CUNNINGHAM  v.  BROWNING.  303 

in  virtue  of  his  office. ((i)  But  it  not  unfrequently  happens,  that 
the  king's  title  to  lands,  which  has  thus  accrued  to  him  by  confis- 
cation, forfeiture  or  escheat,  remains  wholly  unknown  to  the  public 
officers  whose  duty  it  is  to  have  it  distinctly  and  specially  replaced 
in  his  hands  by  an  inquest  of  office  ;  therefore,  in  such  cases,  where 
an  individual  by  petition  to  the  kingjirst  makes  known  the  fact,  that 
there  is  such  an  interest ;  and  prays  some  reward  upon  the  ground 
of  discovery,  if  it  can  be  made  out ;  the  proper  proceedings  are 
thereupon  instituted ;  and  if  the  escheat  be  established,  the  petitioner 
is  usually  rewarded  with  a  lease  of  the  property  for  his  discovery. (e) 
Considering  the  numerous  and  various  matters  of  public  con- 
cern by  which  the  attention  of  the  king  is  presumed  to  be  unceas- 
ingly engaged  ;  in  order  to  prevent  mistake,  imposition  and  fraud, 
it  is  provided,  that  all  his  grants  must  pass  through  certain  pre- 
liminary grades  and  forms.  The  proposed  grant  is  by  a  warrant 
from  the  crown  first  put  into  the  form  of  a  bill  by  the  attorney  and 
solicitor  general,  which  is  then  to  be  sealed  with  the  privy  signet 
by  the  principal  secretary  of  state,  and  approved  and  signed  by 
the  king ;  it  is  then  carried  to  the  keeper  of  the  privy  seal,  who 
makes  out  a  writ  thereupon  to  the  chancery,  which,  if  no  objec- 
tion be  apparent,  or  then  interposed,  is  a  warrant  to  affix  the  great 
seal  to  the  patent.  Upon  which  it  is  enrolled,  within  the  time 
limited  by  law,  in  the  Petty  Bag  or  the  enrollment  office,  which 
appears  to  have  originally  constituted  a  part  of  the  court  itself, 
and  which  is,  for  all  such  purposes,  a  legal  court  of  record. (y) 
But  if  before  the  great  seal  has  been  put  to  the  patent  the  proposed 
grantee  dies,  the  application  so  totally  fails,  that  the  whole  pro- 
ceeding must  be  revived,  or  renewed  by  the  heir  or  person  who 
succeeds  to  the  pretensions  of  the  applicant. (o-)  The  object  of 
all  these  several  forms  is,  that  the  proposed  grant  may  be  narrowly 
inspected  by  all  those  officers  whose  duty  it  is  to  inform  the  king 
if  there  be  any  thing  contained  in  it  which  is  improper  or  unlawful 
to  be  granted ;  indeed,  it  is  said  to  be  the  duty  of  all  the  king's 
subjects  to  see,  that  he  is  fully  informed  as  to  such  matters. (A) 

(d)  Raysing's  Case,  Dyer,  208  ;  Page's  Case,  5  Co.  52  ;  Doe  Lessee  of  Hayne  v 
Redfern,  12  East,  96  ;  F.  N.  B.  566,  569  ;  4  Inst.  225  ;  Gilb.  Exch.  103,  109  ;  2  Blac 
Com.  244;  3  Blac.  Com.  253  ;  Shelf.  Lun.  &  Idiots,  75.— (e)  Moggridge  v  Thack 
well,  7  Ves.  71.— (/)  "Vernon  v.  Benson,  9  Mod.  48 ;  Ex  parte  Koops,  6  Ves.  599 
Ex  parte  Beck,  1  Bro.  C.  C.  578  ;  Attorney  General  v.  Stewart,  2  Meriv.  153 
1  Mad.  Chan.  4.— (§•)  1  Boz.  His.  Mary.  258.— (A)  Com.  Dig.  tit.  Patent  C.  5  &  D  ; 
Bac.  Abr.  tit.  Prerogative  F. ;  2  Inst.  555;  Gilb.  For.  Rom.  12  ;  The  Case  of  Alton 
Woods,  1  Co.  52. 


304  CUNNINGHAM  v.  BROWNING. 

But  those  officers  whose  duty  it  is,  thus  carefully  to  examine 
and  consider  the  nature  of  the  proposed  grant,  before  they  pass  it, 
cannot  be  presumed  to  know  any  thing  more  of  it  than  what 
appears  upon  its  lace,  or  than  what  is  represented  to  them  by  the 
applicant ;  and  yet  there  may  be  a  variety  of  circumstances,  not 
so  apparent,  or  disclosed,  which,  if  made  known,  would  clearly 
demonstrate  the  great  impropriety  and  injustice  of  passing  it. 
Hence,  in  all  such  cases,  where  the  interests  of  a  third  person  are 
likely  to  be  materially  affected  by  the  granting  of  a  patent,  its 
emanation  may  be  opposed  by  such  third  person ;  for,  when  the 
immediate  possession  of  land  is  granted  to  two  several  persons,  it 
begets  suits  and  troubles,  which  the  common  law  will  not  suffer  in 
the  king's  grants  under  the  great  seal  ;(i)  and  therefore,  to  prevent 
such  mischief,  it  is  said,  that  there  are  three  several  stages  at 
which  the  making  out  of  a  patent  may  be  opposed ;  first,  when  it 
is  under  the  consideration  of  the  king  ;  secondly,  when  it  comes  to 
the. privy  seal;  and  thirdly, hj  a  caveat  vihen  it  comes  to  the  great 
seal.(j)     This  last  appears  to  be  the  most  formal  and  usual  course. 

In  putting  the  great  seal  to  a  patent  the  Chancellor  acts  in 
his  legal  capacity;  and  therefore,  in  hearing  and  deciding  upon 
any  controversy  which  may  arise,  as  to  the  propriety  of  passing  a 
patent,  he  sits  as  a  court  of  common  law;(/c)  and  so  long  as  an 
application  thus  stands  before' the  Chancellor  for  the  great  seal,  he 
may  indulge  the  parties  with  further  time  upon'  such  terms  as  he 
may  deem  equitable  and  proper  ;  but  after  the  great  seal  has  been 
once  put  to  the  patent,  then  all  further  control  over  it  by  the  Chan- 
cellor in  a  summary  way  on  a  caveat  ceases.  (/) 

A  caveat  in  chancery  is  a  petition  or  suggestion  entered  by  the 
party,  who  supposes  himself  likely  to  be  injured  by  the  granting 
of  a  patent,  respectfully  cautioning  the  Chancellor  not  to  put  the 
great  seal  to  the  instrument  until  the  applicant  has  been  called  upon 
to  make  out  a  proper  case  for  his  patent;  and,  also  to  shew  cause, 
if  any  he  has,  why  the  objections  thus  made  to  its  being  granted 
should  not  be  allowed.  Upon  which  a  day  is  appointed  for  the 
hearing,  of  which  the  applicant  is  notified  ;  and  in  the  interval  the 
parties  are  allowed,  if  required,  to  take  testimony  in  relation  to 
any  controverted  facts.  And  at  the  hearing,  the  applicant  for  the 
patent,  considered  as  a  plaintiff,  or  as  holding  the  afHrmative  of  the 

(i)  The  Case  of  Alton  Woods,  1  Co.  50.— (y)  1  Mad.  Chan.  IS.  1  €hal.  Opin. 
Em.  Law,  55.— (A.)  3  Blac.  Corn.  49.— {/)  Ex  parte  Bock,  1  iiro.  C.  C.  57S ;  Ex 
parte  Koops,  6  Ve.s.  599.  ' 


CUNNINGHAM  v.  BROWNING.  395 

matter  thus  put  in  issue,  is  allowed  to  open  and  conclude  the  argu- 
ment. After  which  the  Chancellor  may  overrule,  or  allow  the 
objections  ;  from  which  there  is  no  appeal :  but  no  costs  are  given 
if  the  caveat  be  not  unreasonable. (??i)  If  the  objections  are  over- 
ruled the  caveat  is  discharged,  and  the  great  seal  is  at  once  put  to 
the  instrument,  and  the  grant  is  thus  perfected  and  issued  ;  but  if 
the  Chancellor  sustains  the  objections,  he  then  withholds  the  great 
seal,  and  represents  the  whole  matter  to  the  king ;  who  may  never- 
theless order  a  patent  to  be  issued  or  not  at  his  pleasure.  (7^) 

The  charter  of  Maryland  gave  to  the  lord  proprietary  an  abso- 
lute right  of  soil  to  all  the  territory  comprehended  within  its  speci- 
fied boundaries ;  and  constituted  him  vice-roy  over  the  province. 
Thus  clothed  with  an  unqualified  title  to  all  the  lands,  and  a 
limited,  yet  large  extent  of  sovereignty  over  the  projected  State,  he 
commenced  the  settlement  of  the  country  in  March  1634  ;(o)  and, 
as  might  have  been  expected,  from  the  nature  of  things,  the  par- 
celling out  and  sale  of  lands  called  for  his  earliest  attention.  It 
appears  accordingly,  that  among  the  first  things  done  by  the  pro- 
prietary, was  to  adjust  and  publish  the  terms  upon  which  he  pro- 
posed to  dispose  of  his  lands,  and  the  manner  in  which  an  individual 
might  obtain  a  legal  title  to  any  specified  quantity  he  might  want ; 
but  of  those  terms,  or  conditions  of  plantation,  it  will  here  be  unne- 
cessary to  say  any  thing  further,  in  regard  to  original  grants  from 
the  proprietary,  than  that  lands  were  given  to  emigrants  as  an 
encouragement  to  their  coming  into  and  settling  the  country ;  or 
they  were  sold  at  a  low,  but  stipulated  price  payable  in  money. 
But,  large  quantities  of  land,  after  having  been  thus  alienated,  were 
continually  reverting  to  the  proprietary,  considering  him  merely  as 

(wi)   Ex  parte  Fox,  1  Ves.  St  Bea.  67. 

(«)  Leighton's  Case,  2  Vern.  173;  Ex  parte  O'Reily,  1  Ves.jun.  112;  1  Chal. 
Opiii.  Em.  Law,  152 ;  Ex  parte  Beck,  1  Bro.  C.  C.  578  ;  Slingsby's  Case,  3  Swan.  178, 
note  ;  1  Mad.  Chan.  IS  ;  1  Hal.  Con.  Eng.  489,  note  ;  2  Virg.  Stat.  523,  531,  537. 

The  process  of  obtaining  a  patent  for  a  new  invention ;  and  the  mode  of  prevent- 
ing the  emanation  of  such  a  patent,  in  England,  by  a  caveat,  is  substantially  similar 
to  that  here  described.  Weslm.  Rev.  Jan.  1835,  art.  12.  It  would  Seem,  that,  under  the 
colonial  government  as  well  as  since  the  revolution,  the  exclusive  right  to  a  new 
invention  could  only  be  secured  to  the  inventor  by  a  special  act  of  the  legislature, 

I  Virg.  Stat.  374  ;  1784,  ch.  20  ;  1786,  ch.  23 ;  Jpril  17S7,  ch.  21,  as  the  English  sta- 
tute of  monopolies,  21  Jac.  1,  c.  3,  did  not  extend  to  the  colonies,  1  Chal.  Opin.  Em. 
Law,  202.  But  this  matter  now  belongs  to  the  government  of  the  United  States,  and 
has  been  regulated  by  the  acts  of  Congress  of  the  21st  February,  1793,  ch.  11,  and 
15th  February,  1819,  ch.  19. 

(0)  1   Boz.  His.  Mary.  274;   Land  Ho.  Ass.    13,  64,  255;  Cassell   v.   Carroll, 

II  Wheat.  134,  170. 

39 


306  CUNNINGHAM  v.  BROWNING. 

one  of  the  contracting  parties  ;  because  of  the  purchasers  failing  to 
comply  with  the  conditions  of  plantation  on  their  part;  or  the 
lands  which  had  been  so  disposed  of  by  the  proprietary  were 
returned  to  him  by  forfeiture  or  escheat. 

By  several  proclamations  of  the  proprietary,  the  first  of  which 
was  published  in  November  1725,  it  was  made  an  express  condi- 
tion of  all  future  contracts  between  himself  and  the  purchasers  of 
his  lands,  that  the  purchaser  should,  after  the  survey,  pay  the 
whole  purchase  money  and  take  out  a  patent  within  two  years 
from  the  date  of  the  warrant ;  or,  on  his  failing  to  do  so,  he 
should  forfeit  the  imperfect  title  he  had  so  acquired,  if  any  one 
should  thereafter  discover  the  fact,  and  take  out  a  warrant,  and 
obtain  a  patent  thereon  for  the  same  land ;  who  as  a  reward  for  his 
discoveiy  was  allowed  a  warrant  on  the  payment,  at  the  time,  of 
one-tenth  of  the  amount  of  the  composition  money  then  due,  and 
the  remaining  nine-tenths  on  the  returii  of  the  certificate. (p)  This 
may  be  regarded  as  a  kind  of  escheat ;  and  the  power  of  the  pro- 
prietary, in  such  cases,  to  make  a  new  disposition  of  the  land  as 
being  thus,  according  to  the  terms  of  the  contract,  restored  to  him 
by  operation  of  law  without  any  inquest  of  office  whatever ;  for  the 
contract  between  the  proprietary  and  the  then  immediate  purchaser 
and  holder,  being  upon  record,  was  considered  as  equivalent  to  an 
inquest  of  office. (5-) 

But  where,  after  the  whole  legal  estate  in  fee  simple  had  passed 
out  of  the  proprietaiy,  the  individual  owner  had,  by  being  con- 
victed of  a  crime,  forfeited  his  estate ;  or  where  the  lands  which 
had  been  so  granted  had,  by  the  death  of  the  owner  intestate  and 
without  heirs,  escheated,  it  seems  to  have  been  deemed  necessary, 
during  the  earlier  periods  of  the  proprietary  government,  here,  as 
in  England,  to  have  the  fact  of  such  title  and  of  the  nature  and 
extent  of  the  lands  ascertained  by  an  inquest  of  office  before  the 
same  lands  could  be  again  disposed  of  by  the  proprietary.  The 
first  settlers  being,  for  the  most  part,  poor  adventurers,  it  often 
happened,  that  they  died  intestate  without  leaving  any  /mown 
heirs ;  and,  therefore  it  was,  that,  for  many  years  after  the  setUe- 
ment  of  the  country,  cases  of  escheat  for  want  of  heirs  were  so 
very  frequent. (?•)  The  inquests  in  all  such  cases,  although  there 
was  at  one  time  an  escheator,(s)  were  ordered  to  be  taken  here,  as 

(p)  Land  Ho.  Ass.  319,  462,  469  ;  1795,  ch.  8S,  s.  10.— (9)  Land  Ho.  Ass.  1S6 ; 
Gilb.  Exch.  89 ;  1  Chal.  Opin.  Em.  Law,  150.— (r)  Land  Ho.  Ass.  154, 245.— (c)  Land 
Ho.  Ass.  224. 


CUNNINGHAM  r.  BROWNING.  3Q-7 

in  England, -by  a  writ  of  mandamus,  or  a  diaii  clausit  extremum 
directed  to  the  sheriff  of  the  county  in  which  the  lands  lay ;  upon 
the  return  of  which,  as  a  reward  to  the  discoverer,  at  whose 
instance  the  mandamus  had  been  issued,  he  was  allowed  to  have 
the  pre-emption  of  the  land  so  escheated  at  two-thirds  of  its 
value,  or  that  it  should  be  sold,  and  one-third  of  the  proceeds  of 
sale  paid  to  him.(i) 

But,  in  that  interval  of  time,  between  the  years  1692  and  1715, 
when  the  government  of  the  province  was  taken  into  the  hands  of 
the  king,  although  the  proprietary's  right  of  soil  was  admitted,  it 
was  yet  found  difficult,  or  impracticable  to  have  any  such  inquests 
of  office  executed  for  his  benefit,  and  as  a  safeguard  to  the  rio-hts 
of  the  citizen ;  and  therefore,  during  that  time,  his  agents  issued 
warrants,  and  made  out  grants  for  all  escheated  lands  without  any 
previous  inquest.  After  the  government  was  restored  to  the  lord 
proprietary,  the  granting  of  escheated  lands  without  any  previous 
inquest  of  office  was  still  continued  •,{u)  and  this  practice  having  been 
followed  up  in  the  same  way  ever  since,  under  the  State  government, 
the  holding  of  an  inquest  of  office  in  any  such  case  must  now  be  con- 
sidered as  having  been  thus  virtually  abolished. (z^)  He  who  disco- 
vers the  escheat  and  sues  out  an  escheat  warrant,  is  entitled,  as 
formerly,  to  have  a  patent  for  the  land  on  paying  two-thirds  of  its 
value ;  which  value,  instead  of  being  ascertained,  as  formerly,  by 
inquest,  is  now  estimated  and  returned  by  the  surveyor  under  his  oath 
of  office. (t/;)  It  has  been  laid  down  since  the  revolution,  that  the 
State,  as  to  the  lands  of  the  proprietary,  stands  in  his  place;  and 
that  they  remained  subject  to  all  claims  and  rights  created  and 
acquired  under  the  proprietary  ;(j:)  and  further,  that  by  the  acts  of 
confiscation,  passed  during  the  revolutionary  war,  all  British  pro- 
perty was  seized  and  vested  in  the  State  without  office  found,  (y) 

What  is  here  said,  in  regard  to  inquests  of  office,  must  how- 
ever be  understood  as  applying  only  to  cases  where  the  lands  of 
a  citizen  have  escheated  on  his  death  intestate  without  heirs  ;  for 


(0  Land  Ho.  Ass.  102,  114,  174,  194,  261,  233,  319;  Lord  Prorietary  v.  Jenings, 
1  H.  ^  McH.  119 ;  Kilt.  Rep.  14  Ed.  3,  c.  8,  &  8  H.  6,  c.  16  ;  Land  Records,  lib.  C 
B.  13,  &c. ;  Chan.  Pro.  lib.  C.  D.,  78 ;  lib.  P.  L.  fol.  90 ;  lib.  J.  R.  fol.  242,  kc 
(j<)  Greaves  v.  Dempsy,  1  H.  &,  McH.  65 ;  Lord  Proprietary  v.  Jenings,  1  H.  &,  McH 
119, 138  ;  Thomas  v.  Wootton,  4  H.  &  McH.  428.— (r)  Land  Ho.  Ass.  160, 162, 176 
Owings  V.  Norwood,  2  H.  &  J.  96.— (?«)  Land  Ho.  Ass.  319, 435,  438  ;  1800,  ch.  70 
(x)  Land  Ho.  Ass.  300  ;  Ringgold  v.  Malott,  1  H.  &  J.  317.— (y)  Land  Ho.  Ass 
301,  332 ;  Ringgold  v.  Malott,  1  H.  Sc  J.  317  ;  Owings  r.  Norwood,  2  H.  &  J.  96 ; 
Hall  V.  Gittings,  2  H.  &.  J.  112. 


308  -        CUNNINGHAM  f.  BROWNING. 

as  to  an  alien,  it  has  been  held,  that  his  title,  which  he  has 
acquired  by  purchase,  is  good  against  every  body  but  the  State, 
and  cannot  be  divested  without  office  found  ;(z)  although  it  would 
seem,  that,  as  regards  the  interests  of  creditors,  it  may  be  consid- 
ered as  having  devolved  upon  the  State  without  any  previous 
inquest  of  office,  (a)  It  is  now  unnecessary  to  say  any  thing  of 
forfeited  lands,  of  which  it  w'as  formerly  made  the  duty  of  sur- 
veyors to  give  notice, (6)  since  it  has  been  declared,  that  no  con- 
viction or  attainder  shall  work  corrujotion  of  blood  or  forfeiture  of 
estate. (c) 

In  the  original  conditions  of  plantation,  it  was  declared,  that  a 
legal  title  should  be  made  to  all  purchasers  from  the  proprietary  by 
a  grant  under  the  Great  Seal  of  the  Province  ;{d)  thus  indicating 
at  once,  and  from  the  outset,  to  all  purchasers,  that  there  should  be 
a  Chancellor,  or  keeper  of  the  Great  Seal  of  the  Province ;  whose 
duty  it  should  be  here,  as  wms  the  duty  of  the  similar  officer  in 
England,  to  pass  upon  and  authenticate  all  patent  grants  for 
lands. (c)  But  although  by  a  commission,  dated  on  the  1 5th  of 
April,  1637,  the  first  governor  was  constituted  "  chancellor,  chief 
justice,  and  chief  magistrate  Vv^ithin  the  province,  until  officers  and 
ministers  of  justice  should  be  appointed  ;"(/")  yet  grants  for  lands 
to  the  first  settlers  were  issued  and  authenticated  under  the  hand 
and  seal  of  the  governor  alone ;  and  it  was  not  until  about  the 
year  1644,  that  patent  grants  w'ere  authenticated  by  the  Chancellor 
under  the  Great  Seal  of  the  Province,  according  to  the  English 
mode  of  making  out  such  deeds,  (o-)  From  that  time,  however,  to 
the  present,  patent  grants  have  been  made  out  and  authenticated 
according  to  the  form  now  in  use. 

The  increase  in  population,  and  the  spreading  out  of  the  settle- 
ment of  the  country,  so  multiplied  the  demands  for  the  proprietary's 
lands,  that  in  the  year  16S0,  for  the  greater  regularity  and  despatch 
of  business  in  that  respect,  a  Land  Office  w^is  established  ;  in  which 
it  w^as  directed,  that  authentic  records  of  all  proceedings  in  relation 
to  the  sale  and  granting  of  lands  should  be  made  and  kept,(/i) 
■certified  copies  of  w^hich,  as  of  any  other  records,  are  held  to  be 
legal  evidence,  (i)     This  office  was  appended  to  the  common  law 

(2)  McCieery  v.  AUender,  4  H.  &  McH.  409 ;  McCreery  v.  Wilson,  4  H.  &.  McH. 
412  ;  Fairfax  v.  Hunter,  7  Cran.  619.— (a)  1799,  cli.  79,  s.  7.— (6)  Land  Ho.  Ass. 
439.— (c)  Dccl.  Riu:hts,  art.  24;  1809,  ch.  133,  .s.  10.— (d)  Land  Ho.  Ass.  30,  39. 
(c)  Land  Ho.  Ass.  64.— (/)  1  Boz.  His.  Mary.  292;  Land  Ho.  Ass.  64.— (g)  Land 
Records,  lib.  No.  1,  folio  195.— (A)  Land  Ho.  Ass.  103,  232,  283.— (i)  Thornton  v. 
Edwards,  1  H.  k  McH.  153. 


CUNNINGHAM  v.  BROWNING.   -   -^  309 

side  of  the  Court  of  Chancery  of  Maryland,  and  was  evidently 
considered  as  corresponding,  in  almost  all  respects,  to  the  Petty 
Bag,  or  enrollment  office  of  the  English  Court  of  Chancery.  For, 
in  all  the  proceedings  in  chancery,  in  relation  to  the  repeal  of 
letters  patent  for  land  by  scire  facias,  and  to  the  business  and 
records  of  the  Land  Office,  the  court  is  always  specially  designated 
as  "T/iC  Chancery  Court  of  Records  ;^\j)  for  the  express  purpose, 
as  it  appears,  of  distinguishing  its  common  law  jurisdiction,  in 
relation  to  patent  grants  for  lands,  in  which  respect  it  was,  by 
analogy  to  the  English  system,  deemed  a  court  of  record,  from  its 
jurisdiction  as  a  mere  court  of  equity,  in  which  capacity,  according 
to  the  English  law,  it  was  not  a  court  of  record, (i't:)  The  expres- 
sion, "  the  Chancery  Court  of  Records,"  answered  veiy  well  at  the 
time,  and  may  still  serve,  with  a  recollection  of  the  English  law  to 
which  it  refers,  as  a  sufficiently  apt  and  clear  designation  of  the 
distinction  between  the  two  sides  of  the  Court  of  Chancery,  between 
the  two  capacities  of  common  law  and  equity  in  which  it  acts  ;  but 
at  present,  the  Court  of  Chancery  of  Marj-land  must  be  considered 
as  in  all  respects  a  court  of  record  ;  since  all  its  proceedings,  as 
well  in  equity  as  at  common  law,  are  recorded ;  and  it  has  all  the 
powers  incident  to  the  jurisdiction  of  such  courts  of  record. 

The  lord  proprietary's  lands  always  yielded  him  a  very  large 
proportion,  and  sometimes  the  only  revenue  he  derived  from  his 
Province  ;  and  therefore  here,  as  in  England,  the  mode  of  obtaining 
titles  to  lands  seems  to  have  been  regulated,  as  well  with  a  view  to 
the  safe  collection  of  this  branch  of  the  revenue,  as  to  the  assuring 
of  justice  and  fairness  to  the  contracting  parties.  Before  the 
establishment  of  the  Land  Office,  here,  as  in  England,  the  applicant 
for  a  patent  commenced  by  obtaining  a  warrant  from  the  sovereign, 
under  his  seal  at  arms,  or  tlie  Lesser  Seal  of  the  Province ;(/)  by 
which,  on  the  purchase  money  being  paid  to  the  treasurer,(7?i)  the 
surveyor  was  authorized  to  lay  out  the  land  as  required  ;(w)  and 
upon  a  certificate  of  the  survey  being  returned  to  the, Chancery 
Office,  the  secretary,  who  was  then  the  recording  officer  of  the 
Court  of  Chancery,(o)  if  he  approved  of  the  proceedings,  made 
out  the  patent  grant, (;;)  which  was  to  be  finally  passed  upon  and 
authenticated  by  the  Chancellor.  ((7) 

(j)  Land  Ho.  Ass.  114,  122,  178,  ISl. —(/.•)  Com.  Die;,  tit.  Chancery  C.  1  &  2; 
2  Mad.  Chan.  712.— (/)  Land  Ho.  Ass.  43,  65,  76,  9S.— (?«,)  Land  Ho.  Ass.  .54,  56, 
62,  128.— (71)  Land  Ho.  Ass.  75.— (0)  Land  Ho.  Ass.  43,  65.— (;j)  Land  Ho.  Ass. 
41,  66,  82.— (j)  Land  Ho.  Assrl26. 


310  CUNNINGHAM  v.  BROWNING. 

It  must  be  recollected,  however,  that  the  lord  proprietary,  like 
the  king  of  England,  had  the  power,  and  actually  did  make  a 
multitude  of  leases  for  years  of  his  lands,  without  the  solemnity  of 
a  patent  grant  under  the  great  seal.  These  leases  w'ere  rarely  or 
never  at  any  time  signed  or  sealed  by  the  Chancellor,  nor  could  he 
in  any  way  check  or  control  the  making  of  them,  as  he  might  the 
passing  of  a  patent  grant  for  an  estate  of  inheritance  when  it  came 
for  the  great  seal,  if  a  caveat  should  be  then  filed ;  and  therefore 
it  need  only  to  be  observed  here,  that  none  of  the  proceedings 
which  may  be  met  with  in  our  records,  in  regard  to  those  pro- 
prietary leases,  can  have  any  relation  to  the  matter  now  under 
consideration,  (r) 

But  after  the  establishment  of  the  Land  Office,  the  mode  of 
proceeding  to  obtain  a  legal  estate  of  inheritance  in  lands,  from  the 
proprietary,  was  somewhat  differently,  and  much  better  regulated. 
The  Constitution  of  the  Republic  directed  that  there  should  be  two 
registers  of  the  Land  Office  appointed,  one  for  the  Western,  and 
the  other  for  the  Eastern  Shore. (s)  And  these  Land  Offices  were 
organized  accordingly  by  a  re-establishment  of  the  connexion  which- 
had  formerly  subsisted  between  the  Court  of  Chancery  and  the 
Land  Office,  and  an  adoption  of  all  the  regulations  and  the  law  by 
which  that  office  had  been  formerly  governed,  in  so  far  as  they  were 
consistent  v.'ith  the  new  frame  of  government.  (^) 

There  were  under  the  proprietary's  government,  and  still  are, 
five  different  modes  of  beginning  to  obtain  a  title  to  lands  ;  or,  in 
other  words,  five  several  kinds  of  warrants,  all  of  which  are  now 
issued  by  the  register  under  his  signature  and  the  seal  of  his  office,(zi) 
by  which  an  applicant  may  obtain  a  patent  for  the  land  he  proposes 
to  purchase.  If  it  be  his  object,  in  general,  to  obtain  a  certain 
quantity  of  vacant  land,  any  where,  without  regard  to  any  particular 
space,  or  tract,  then,  on  paying  one-half  of  the  stipulated  price  to 
the  treasurer,  he  gets  from  him  a  titling  ;(ii)  upon  which  the  register 
of  the  Land  Office  gives  him  a  common  warrant,  directed  to  the 
surveyor,  commanding  him  to  lay  out  the  specified  quantity  of  land 
as  required.  But  if  required  by  the  applicant,  on  presenting  his 
titling,  the  register  will  insert  a  particular  description  of  the  land 
aimed  at  in  the  warrant  itself;  which  specification  gives  to  it  the 
denomination  of  a  special  warrayit  ;{w)  or  the  register  may,  with- 
er) Land  Ho.  Ass.  219.— (s)  Constitution,  art.  51.— (<)  Land  Ho.  Ass.  300,  305, 
307;  November,  1781,  ch.  20,  s.  12.— (m)  Land  Ho.  Ass.  466.— (y)  Land  Ho.  Ass. 
232,  261,  275,  2S2.— (u;)  Land  Ho.  Ass.  318,  367,  470, 


CUNNINGHAM  r.  BROWNING.  3X1 

out  any  such  titling,  issue  a  common  or  a  special  loarrant,  for 
vacant  land,  in  lieu  of  warrant  remaining  unexecuted  in  whole  or 
in  part ;  or  in  lieu  of  deficiency  found,  on  resurvey,  in  original 
tracts,  and  for  composition  paid  in  cases  in  which  the  certificate, 
or  grant  shall  afterwards  have  been  vacated  ;  or  where  certificates 
ordered  for  correction  become  void  by  not  being  afterwards  returned 
within  the  lime  prescribed  by  law.(x)  Or  if  the  applicant,  after 
having  thus  obtained  a  common  vjarrant^  causes  a  particular  descrip- 
tion of  the  land  he  wishes  to  obtain  to  be  noted  on  the  sur- 
veyor's book,  it  has,  from  the  date  of  such  entry,  all  the  effect  of  a 
special  warrant. {y)  But,  if  the  applicant  had  already  obtained  a 
title  to  a  tract  of  land,  by  having  had  it  surveyed,  and  a  certificate 
returned,  or  by  having  obtained  a  patent  for  it,  and  only  wished  to 
add  to  it  some  contiguous  vacancy,  he  may  obtain  at  once  from  the 
register  of  the  Land  Office,  a  warrant  of  resurvey^  directed,  in  like 
manner,  to  the  surveyor. (z)  So  if  any  one  had  caused  a  parti- 
cular tract  of  land  to  be  surveyed,  but  had  failed  to  comply  with 
the  conditions  of  plantation,  and  formerly,  to  take  out  a  patent,  or 
now  to  compound  on  the  certificate,  within  the  one  year,  as  for- 
merly limited  by  the  proclamation,  and  now  by  the  law, (a)  any 
one  else,  by  an  application  to  the  register  of  the  Land  Office,  and 
paying  to  the  treasurer  one-tenth  of  the  composition  then  remain- 
ing due,(&)  may  obtain  from  the  register  a  proclamation  warrant 
authorizing  the  applicant  to  take  up  the  same  lands,  (c)  But  when, 
by  reason  of  the  sickness  or  death  of  the  examiner-general,  warrants 
could  not  be  examined  and  returned  in  time,  the  Chancellor  has,  by 
a  general  order,  suspended,  for  a  time,  the  right  to  take  out  pro- 
clamation warrants. ((^)  And  finally,  any  one  by  an  application, 
setting  forth  that  a  certain  designated  tract  of  land  had  actually 
escheated  by  the  death  of  the  last  individual  owner  intestate  and 
without  heirs,  may  obtain  immediately  from  the  register  of  the  Land 
Ofhce,  an  esclieat  warrant  authorizing^  the  applicant  to  obtain  a 
patent  for  the  land  so  specified. (e) 

After  the  applicant  has  procured  any  one  of  these  five  kinds  of 
warrants,  his  next  step  is  to  have  the  land  surveyed  in  the  man- 
ner prescribed  by  the  rules  and  orders  laid  down  for  the  direc- 

(x)  Land  Ho.  Ass.  322;  Steuart  r.  Mason,  3  H.  &  J.  507.— (j/)  Land  Ho.  Ass. 
2S5,435.— (^)  Land  Ho.  Ass.  1-J9,322.— (a)  November,  1781,  ch.  20,  s.  6.—(b}  Land 
Ho.  Ass.  469.— (c)  Land  Ho.  Ass.  186,359.— (rf)  Per  Kilty,  Chancellor,  26th  April, 
1815,  and  per  Bland,  Chancellor,  6th  June,  1834;  Land  Ho.  Ass.  443. — (c)  Land 
Ho.  Ass.  173, 362,  470 ;  Hall  v.  Gittings,  2  H.  &  J.  12a. 


312  CUNNINGHAM  v.  BROWNING. 

tioii  of  surveyors ;{/)  a  certificate  of  which  was  formerly  returned 
to  the  Land  Office,  but  now  to  the  examiner-general, (o-)  to  be 
by  him  critically  reviewed ;  and  if  upon  such  examination,  it 
is  found  to  be  erroneous,  it  is  sent  back  to  the  surveyor  for 
correction  ;  after  which  it  must  be  lodged  in  the  £and  Office  within 
ejofhteen  months  from  the  date  of  the  warrant  on  which  it  was 
made,  or  it  will  be  deemed  void;(A)  and  if  ordered  by  the  Chan- 
cellor to  be  corrected,  it  must  be  returned,  together  with  the  erro- 
neous certificate,  within  nine  months  from  the  date  of  the  order, 
otherwise  it  can  never  be  received,  (i)  If  the  certificate  is  approved 
by  the  examiner-general,  it  is  then  taken  to  the  treasurer,  who, 
upon  payment  of  the  whole  amount  of  the  purchase  money,  endorses 
upon  it  a  receipt,  specifying  that  it  has  been  fully  compounded 
on  ;(j)  after  which  the  certificate  is  received  into  the  Land  Office, 
and  the  day  of  its  being  so  returned  endorsed  thereon  as  being 
then  ready  for  a  patent,  if  not  opposed  by  a  caveat. [k) 

The  dealing  out  of  the  vacant  lands,  which  had  never  before  been 
held  in  separate  parcels,  not  merely  as  in  England,  at  the  time  of 
the  Norman  conquest,  or  as  after  a  rebellion  in  Ireland,  among  a 
few  of  the  monarch's  favourites ;(/)  but  of  the  whole  territory  of  the 
State,  to  an  entirely  new  set  of  emigrants,  who  undertook  to  reduce 
the  wilderness  to  cultivation,  was  then  a  proceeding  of  the  most 
novel  and  interesting  character.  (??i)  The  mode  of  granting  lands 
by  the  king  naturally  suggested  itself  to  the  viceroy  of  Maryland 
as  the  best ;  and,  as  has  been  shewn,  was  accordingly  as  closely 
followed  as  the  nature  of  things  Avould  permit.  But  when  the  Land 
Office  was  established,  the  business  of  disposing  of  the  vacant 
lands  had  become,  and  was  then  rapidly  swelling  to  a  magnitude, 
that  engrossed  a  large  share  of  the  attention  of  the  government. 

-  It  was  only  by  means  of  this  department  of  the  Chancery,  called 
the  Land  Office,  that  a  large  proportion  of  the  revenue  derived 
from  the  sale  of  vacant,  confiscated,  or  escheated  lands,  could  for- 
merly, or  can  now  be  ascertained ;  and  consequeptly  in  that  point 
of  view,  it  must  have  been  formerly  regarded  as  a  very  important 
revenue  office, (71)  as  it  continues  even  yet  to  be  productive.  But 
contemplated  in  another  point  of  view,  it  is  evident,  that  it  must 

(/)  Land  Ho.  Ass.  62,  65,  435.— (g)  1795,  ch.  8S,  s.  l.—{h)  Land  Ho.  Ass.  273, 
325, 466.— (i)  Land  Ho.  Ass.  466.— C^")  Land  Ho.  Ass.  256,  260,  261,  275,  319,  322. 
(/c)  November,  17S1,  ch.  20,  s.  3  &  6;  Dlgges  v.  Beale,  1  H.  &  McH.  67 ;  Lord 
Proprietary  v.  Jenings,  1  H.  &.  McH.  140.— (0  Godw.  Com.  Eng.  b.  4,  c.  27. 
(m)  Land  Ho.  Ass.  299.— (»)  Land  Ho.  Ass.  302. 


CUNNINGHAM  v.  BROWNING.  313 

be  considered  as  the  fountain  and  depository  of  the  primitive  muni- 
ments of  title  to  all  the  landed  properly  in  the  State  ;(o)  in  which 
respect,  the  surveys  returned  to,  and  the  patents  recorded  in  it, 
together  constitute  a  domesday  book,  in  which  a  more  accurate 
description  of  all  the  lands  of  this  State  is  to  be  found,  than  of  the 
lands  in  the  records  of  any  other  country  whatever,  (yj) 

Hence,  instead  of  committing  the  affairs  of  this  vastly  important 
oflfice,  in  the  absence  of  the  lord  proprietary,  to  the  care  of  a  mere 
ministerial  officer,  called  "  The  Clerk  and  Register  of  the  Land 
Office,"  a  council  for  lands  was  established,  (1684,)  to  whom  was 
assigned  the  duty  of  supervising  the  Land  Office,  and  of  determin- 
ing upon  all  matters  relating  to  land  which  might  be  brought 
before  them,  "  by  any  of  the  inhabitants  suing  for  acts  of  grace 
and  favour  therein ;"  according  to  a  set  of  instructions  specially 
describing  their  powers  and  duties; (5')  which  powers  and  duties 
were,  some  years  after,  confided  to  a  single  person  specially  com- 
missioned (1695,)  for  that  purpose,  (r)  After  which,  by  an  order  of 
the  lord  proprietary,  (1721,)  reciting,  that  the  power  of  granting 
warrants  for  taking  up  waste,  cultivated  and  uncultivated,  and 
surplus  land,  and  the  finishing  such  warrants  by  making  the  grantees 
an  estate  of  fee  simple,  had  then  chiefly  centred  in  the  deputy 
secretary  ;  and  that  the  hearing  and  determining  differences  arising 
between  contending  parties  in  land  affairs,  which  had  usually  been 
heard  and  determined  in  the  Land  Office,  must  naturally  fall  under 
his  cognizance  ;  he  was  empowered  to  judge  and  determine  in 
those  affairs,  "  as  fur  as  he  legally  might,  according  to  right, 
reason,  and  good  conscience. "(s)  More  than  ten  years  after 
which,  by  a  special  and  distinct  commission,  one  person  was 
appointed  (1732,)  to  be  judge  and  register  of  the  Land  Office, 
wdth  full  power  and  authority  to  act,  hear,  judge,  and  determine  in 
land  affairs,  according  to  right,  reason,  and  good  conscience,  and 
the  several  instructions  and  orders  which  should  from  time  to  time, 
be  given  to  him  by  the  proprietary.  (^)  Accordingly,  in  the  instruc- 
tions soon  after  sent  to  the  Chancellor,  as  well  as  in  those  given  to 
the  judge  and  register  of  the  Land  Oflice,  it  was  expressly  declared, 
that  he  should  be  assisted  in  his  determinations  by  the  Chancel- 
lor, (u)  And  it  moreover  appears,  that  there  was,  for  some  time,  an 
appeal  allowed,  during  the  provincial  government,  from  the  judge 

(0)  Cockey  i-.  Smith,  3  H.  &  J.  26.— (p)  Land  Ho.  Ass.  300.— (9)  Land  Ho.  Asa 
lOS,  112.— (r)  Land  Ho.  Ass.  127.— (s)  Land  Ho.  Ass.  227.— (<)  Land  Ho.  Ass. 
231,  260,  268,  269.— («>  Land  Ho.  Ass.  232,  23-1. 

40 


314  CUNNINGHAM  v.  BROWNING. 

of  the  Land  Office  to  the  Board  of  Revenue,  and  at  other  times, 
as  to  some  matters,  to  the  Chancellor,  (y) 

After  a  certificate  was  returned  to  the  Land  Office,  it  was  formerly, 
as  now,  necessary  that  it  should  remain' there  six  months  to  afford 
an  opportunity  to  any  one  concerned  to  enter  a  caveat  against  the 
emanation  of  a  patent. (?«)  But  apart  from,  and  in  addition  to  the 
reo-ular  proceeding  by  caveat  before  the  Chancellor,  which  it  appears 
always  might  have  been  instituted,  as  at  present,  in  any  case  where 
there  was  a  proper  ground  for  it,  there  were  a  variety  of  other 
causes  of  applications  for  relief,  where  nothing  like  a  judicial  con- 
troversy had  been,  or  perhaps  could  be  instituted  or  brought 
before  a  court  of  justice  in  any  form  whatever.  If,  after  the  lapse 
of  the  limited  period  no  caveat  is  entered,  and  the  register  finds 
the  certificate,  and  all  other  proceedings  to  be  correct,  he  prepares 
a  patent  which  is  signed,  sealed  and  issued  as  of  course,  (a:)  If 
the  certificate,  after  having  been  returned  to  the  office,  has  been 
assigned ;  or  the  holder  of  it  has  died,  it  is  not  necessary,  as  in 
England,  to  renew  the  whole  proceedings  ;  but  it  is  sufficient  to 
state  the  facts  to  the  judge  of  the  Land  Office  in  a  petition,  accom- 
panied by  suitable  vouchers,  such  as  the  written  assignment  itself, 
the  will  of  the  deceased,  an  affidavit  of  some  disinterested  person 
stating  who  were  his  heirs  or  devisees,  &c.,  upon  which  a  patent 
is  ordered  to  be  issued  to  the  assignee,  devisee,  or  heir ;  or,  in 
doubtful  cases,  to  one  to  hold  according  to  his  interest,  to  the  uses 
of  a  will  or  the  like.  If  the  certificate  or  other  proceedings  are 
obviously  erroneous  in  some  immaterial  particular,  it  may  be  cor- 
rected, on  a  petition  setting  forth  the  errors. (y) 

As  to  these  and  all  such  anomalous  cases,  which  were  much 
more  common  before  the  revolution  than  at  present,  the  application 
was  made  to  the  lord  proprietary  in  person, (c)  or  to  his  council  for 
lands,  or  to  his  judge  of  the  Land  Office ;  and  it  was  considered 
not  as  the  commencement  of  a  judicial  proceeding  of  any  kind, 
but  as  "  suing  for  acts  of  grace  and  favour.''''  As  to  all  which 
matters  the  judges  of  the  Land  Office  were  in  fact,  but  executive 
officers  charged  with  the  special  direction,  in  peculiar  and  anoma- 
lous cases,  of  an  establishment  of  great  importance  to  the  lord  pro- 

(u)  Land  Ho.  Ass.  262,  273,  283 ;  Chancellor's  Case,  post,  note  r.—{w)  Land 
Ho.  Ass.  27S,  492  ;  April  1782,  ch.  38,  s.  2.—{x)  Land  Ho.  Ass.  492.— (y)  Land  Ho. 
Ass.  323,  434,  493,  494  ;  Lloyd  v.  Tilijhman,  1  H.  &,  McH.  86  ;  Lord  Proprietary, 
1  H.  k  McH.  135 ;  Joice  v.  Harris,  1  H.  ik.  McH.  196 ;  Hall  v.  Gittings,  2  H.  8c  J- 
112.— (;)  Land  Records,  lib.  C.B.  143,  &.c. 


CUNNINGHAM  v.  BROWNING.  31 5 

prietary.  The  power  to  grant  acts  of  grace  and  favour,  which, 
under  the  proprietary-  government,  had  been  thus  confided  first  to  a 
council  for  lands,  and  then  to  judges  of  the  Land  Office,  was,  after 
the  revolution,  recognised  as  having  devolved  upon  the  Chancel- 
lor; and  it  has  accordingly  been  always  so  exercised  by  him;  but, 
it  is  merely  a  power  to  revise  certain  proceedings  in  respect  to  the 
sale  of  public  lands,  and  to  correct  immaterial  errors  in  cases, 
which  involved  none  of  that  judicial  power  proper  and  necessary 
for  the  management  and  determination  of  controversies  between 
two  or  more  citizens,  such  as  that  which  was  then,  and  is  now 
exercised  by  the  Chancellor  in  determining  on  a  caveat  case. (a) 

A  caveat,  in  the  Land  Office,  is  a  w'arning  to  the  Chancellor  not 
to  put  the  great  seal  to  a  patent  for  a  certain  tract  of  land  as 
prayed  by  the  holder  of  the  certificate  of  the  survey.  As  all  that 
relates  to  patents  for  land  belongs  properly  to  the  common  law 
side  of  the  Court  of  Chancery,  here  as  well  as  in  England,  it 
necessarily  follows,  that  a  caveat  must  be  the  commencement  of  a 
judicial  proceeding  on  the  same  side  of  the  court  with  that  to 
which  it  is  opposed ;  and  consequently,  as  to  all  controversies 
brought  before  the  Chancellor,  by  caveat,  he  holds  a  common  law 
court  of  record ;  or  as  it  was  formerly  said,  the  proceedings  are 
in  "  the  Chancery  Court  of  Records,"  not  in  a  mere  court  of 
equity. (6)  And  considering  it  as  a  court  of  record,  it  has,  like  all 
courts  of  common  law  or  of  equity  of  that  description,  the  power 
to  regulate  its  own  practice  and  proceedings ;  which  regulations 
become  the  law  of  the  court,  and  of  the  case  also,  so  far  as  they 
apply. (c)  And  as  a  grant  for  land  can  only  be  obtained  through 
the  Land  Office,  in  which  all  the  preliminary  preparations  for  it  are 
deposited,  it  follows,  that  a  caveat  can  only  be  presented  to  the 
Chancellor  in  that  office ;  and,  in  general,  after  the  proceedings 
have  beeii  so  far  matured  as  to  be  ready  to  have  the  great  seal  put 
to  the  grant.  ((/)  A  caveat  is  most  usually  entered  bj-  a  simple 
endorsement  of  the  word  "  cavcaV  upon  the  certificate,  if  there  be 
one  returned  to  the  office ;  or  otherwise  by  a  note  on  the  record 
opposite  to  the  warrant,  without  any  specification  whatever  of  the 
cause  o{  caveat  ;{e)  but  it  can  only  be  entered  by  the  interested 
party  himself,  or  by  the  direction  in  writing  of  his  attorney. (y*) 
And  when  entered,  it  cannot  be  permitted  to  continue  longer  than 

(a)  Land  Ho.  Ass.  273,  434  ;  November,  1781,  ch.  20.— (6)  Land  Ho.  Ass.  331, 
465.— (c)  Land  Ho.  Ass  434,  442,  461.— (rf)  Land  Ho.  Ass.  467.— (e)  Land  Ho. 
Ass.  321,  379,  487.— (/)  Land  Ho.  Ass.  442,  443,  487,  491. 


31G  CUNNINGHAM  v.  BROWNING, 

twelve  months,  unless  under  special  circurastanGes.  A  caveat  by- 
two  or  more  does  not  abate  by  the  death  of  one  of  them,  as  it  does 
where  it  has  been  entered  by  one  only.(g-) 

The  grounds  upon  which  a  caveat  may  be  entered  are  various ; 
in  general  they  must  be  such  as  shew,  that  no  grant  ought  to  be 
issued  ;  because  to  do  so  would  be  unjust  to  the  public,  or  to  some 
individual  ;(/i)  or  because  the  applicant  had,  in  some  w^ay,  failed 

(g-)  Land  Ho.  Ass.  2S3,  442,  443,  490  ;  1797,  ch.  114,  s.  10. 

(A)  Land  Ho.  Ass.  90,  91,  304,  449,  453,  491. 

RiDGELY  j;.  Johnson. — 24//j  November,  1801. — Hanson,  Chancellor. — The  Chan- 
cellor having  examined  all  the  depositions  in  this  cause,  produced  to  support  the 
alle2;ations  of  the  parties,  together  with  the  plot  returned  for  illustration ;  and  having 
considered  also  the  arguments  of  the  counsel  on  each  side,  and  having  deliberated 
thereon,  is  of  opinion  as  follows  : — 

He  must  first  make  some  preliminary  remarks. — When  a  man  cnvcaix  a  certificate, 
on  the  ground  that  the  land,  surveyed  as  vacancy,  is  comprehended  in  his  patent; 
unless  the  Chancellor  is  thoroughly  satisfied,  that  the  fact  is  so,  it  is  the  invariable 
practice  to  dismiss  the  caveat,  suffer  a  patent  to  be  issued  on  the  certificate,  and  leave 
the  parties  to  contend  at  law,  before  a  court  and  jurj'.  And  for  this  plain  reasoh, 
that  a  dismission  puts  an  end  to  the  pretensions  on  one  side,  but  leaves  the  other 
party,  viz.  the  caveator,  in  a  condition  so  to  contend.  Besides,  the  State  is  interested. 
If  the  caveat  be  allowed,  it  may  be,  that  the  State  thereby  loses  the  benefit  of  granting 
vacant  land. 

But  independently  of  the  claim  or  pretensions  of  a  caveator,  or  caveators,  it  is  clear 
that,  if  in  any  case  it  appears,  that  the  land  comprehended  in  a  survey  is  not  properly 
grantable,  no  patent  ought  to  issue  for  the  same.  That  this  position  is  just,  appears 
from  the  decree  of  Chancellor  Rogers,  who  in  the  year  1786,  vacated  a  patent,  on  the 
ground  that  the  land  therein  contained  was  not  grantable.  For  surely,  if  a  patent  be 
repealed,  or  vacated  on  that  ground,  it  must  be  supposed,  that  a  patent  would  not 
have  issued,  if  the  ground  had  been  known,  before  the  patent  was  granted. 

That  the  law  respecting  accretion,  alluvion,  and  islands,  in  small  waters  or  rivers, 
is  part  of  the  law  of  Maryland,  as  well  as  of  the  law  of  England,  and  indeed  as  of 
the  law  of  nature,  the  Chancellor,  on  reflection,  entertains  not  a  doubt ;  and  in  his 
conception,  it  is  of  no  consequence,  whether  the  persons,  having  lands  on  such 
waters,  acquired  their  title  before,  or  after  the  islands,  opposite  to  their  lands,  were 
formed.  They  had,  at  any  rate,  a  common  right  to  the  river  ;  and,  of  course,  either 
one,  or  all  of  them,  has  a  right  to  the  benefit  of  an  island  formed  in  the  river.  And 
even,  if  they  have  not  an  exclusive  right  to  the  benefit  of  such  islands,  it  seems,  at 
least,  that  all  those,  having  lands  in  the  river,  or  the  inhabitants  in  general  of  the 
State,  must  have  tliat  right.  In  this  State,  it  may  be  said,  that  a  man  can  claim 
nothing,  except  what  is  contained,  or  described  in  his  patent.  But  the  right  of 
following  the  water,  or  having  the  benefit  of  accretion,  has  been  admitted ;  and 
mighty  inconvenience  would  result  if  it  were  not  so  settled.  And  the  common  right 
of  those  iiaving  land  on  small  waters  to  the  little  islands,  which  are  formed  after  their 
titles  acquired,  seems  at  least  as  reasonable,  as  the  right  of  accretion.  But  the 
principle  of  the  case  decided  by  Mr.  Rogers  applies  to  the  present  case.  In  short, 
it  appears  to  the  Chancellor,  that  a  patent  cannot  possibly,  vtith  propriety,  issue  to 
the  dpfendant  in  this  cause  ;  although  what  person,  or  persons,  or  whether  any  person 
may  be  exclusively  entitled  to  the  flat,  island,  or  marsh,  surveyed  by  the  defendant, 
may  hereafter  be  a  subject  of  litigation. 


CUNNINGHAM  v.  BROWNING.  3I7 

to  comply  with  the  conditions  of  plantation  ;{i)  as  where,  under  a 
warrant  of  resurvey,  two  or  more  distinct  tracts,  not  contiguous  by 
means  of  vacancy  or  otherwise,  were  attempted  to  be  included  in 
one  patent, (J)  or  where  the  special  warrant  contained  more  than  one 
location  ;(/i)  or  because  the  facts  and  circumstances  set  forth  in  the 
proceedings  were,  in  some  material  particular,  irregular,  or  untrue  ; 
as  that  the  survey  had  not  been  made  according  to  the  rules  of  the 
Land  Office  ;  or,  as  in  case  of  an  alleged  escheat,  that  the  late 
owner  had  not  died  intestate  and  without  heirs  as  averred  by  the 
applicant, (/)  or  if  thp  lands  are  actually  escheatable,  that  the  per- 

Upon  the  whole,  it  is  adjuged,  ordered,  and  decreed,  that  the  caveat  of  the  said 
Charles  Ridgely  against  Horatio  Johnson's  certificate  of  a  tract  of  land,  called 
Johnson's  Meadows,  be,  and  it  is  hereby  declared  to  be,  allowed,  and  ruled  good. 

(i)  Land  Ho.  Ass.  327,  45.3 ;  179.5,  ch.  88,  s.  11 ;  Lloyd  v.  Tilghman,  1  H.  &  McH. 
86  ;  Hammond  v.  Ridgely,  5  H.  St  J.  263. 

(j)   Land  Ho.  Ass.  390,  421,  422,  447;  West  v.  Hughes,  1  H.  8c  J.  11  8c  13. 

(k)  Land  Ho.  Ass.  444. 

(Z)  Land  Ho.  Ass.  .381. 

AisQuiTH  V.  GoDMAK. — It  appears  from  the  statement  of  facts  agreed  on  by  the 
parties,  that  of  lot  No.  40,  in  the  city  of  Baltimore,  a  certain  William  Nicholson  was 
seized  in  fee  simple  on  the  20th  of  June,  1761 ;  and,  being  so  seized,  he  made  his 
will,  and  thereby  devised  it  to  his  niece  Elizabeth  Connell,  in  fee  tail  general, 
remainder  to  his  brother  John  Nicholson,  of  the  county  of  Cumberland,  in  England, 
and  his  heirs ;  which  said  John  Nicholson  never  was  a  citizen  of  the  State  of  Main- 
land ; — That  William  Aisquith,  the  caveator,  intermarried  with  Elizabeth  Connell, 
the  devisee,  by  whom  he  had  issue  a  son,  John  Aisquith  ; — that  Elizabeth  Aisquith 
died  on  the  first  of  January,  1782,  leaving  her  husband,  the  present  caveator,  in 
possession  of  the  lot,  and  their  only  child,  John  Aisquith,  who  died  intestate  and 
"without  issue  on  the  1st  of  July,  1785.  It  is  further  stated,  that  the  caveator 
took  out  a  warrant  of  escheat  on  the  15th  of  October,  1785,  to  affect  said  lot, 
and  returned  a  certificate  thereof,  but  did  not  compound  thereon  ;  and  the  caveatee, 
Samuel  Godman,  on  the  3d  of  June,  1795,  proclamated  the  said  certificate,  and 
returned  his  certificate  thereof  to  the  office  on  the  29th  of  May,  1797;  on  which 
the  said  Aisquith  entered  a  caveat  against  a  patent  issuing  thereon  ;  alleging,  that  by 
the  laws  of  this  countrj%  the  said  lot  is  not  liable  to  be  affected  by  an  escheat  warrant, 
and  is  not  escheatable. 

24/A  May,  1798. — Haxson,  Chancellor. — The  said  caveat  being  submitted  to  the 
Chancellor,  on  a  statement  of  facts,  signed  by  the  counsel  on  each  side,  the  said 
statement,  and  the  certificate,  and  all  other  papers  thereto  relative,  were  by  the 
Chancellor  read  and  considered. 

It  appears  to  him,  that  the  facts  contained  in  that  statement  are  conclusive  for  the 
caveator.  It  is  stated,  that  Elizabeth,  the  wife  of  the  caveator,  beins:  tenant  in  tail 
of  the  land  in  question,  died  in  1782,  leaving  one  child  only,  a  son,  who  died  without 
issue  in  1785 ;  that  after  her  death  a  warrant  of  escheat  was  taken  out  by  the 
caveator,  who  returned  a  certificate ;  and  that,  on  his  failing  to  compound,  the 
defendant  took  out  a  warrant  of  proclamation,  and  returned  the  certificate  which  is 
caveated. 

There  is  no  rule  in  this  office  better  established  than  this, — that  the  validity  of  a 
proclamation  warrant  must  depend  on  the  warrant,  under  which  the  land  intended  to 


318  CUNNINGHAM  v.  BROWNING. 

son  who  died  seized  was  indebted  to  the  caveator,  and  others  who 
w^ere  entitled  to  have  the  lands  sold,  and  the  proceeds  applied  in 


be  affected  by  the  proclamation  warrant,  was  survej-ed.  In  the  present  case,  it  is 
clear,  from  the  statement,  that  the  escheat  warrant,  under  which  the  survey,  procla- 
mated  by  the  defendant,  was  made,  was  invalid.  The  act  of  November,  1781,  ch.20, 
sec.  8,  expressly  says,  that  no  escheat  warrant  shall  be  good,  unless  the  owner  (that 
is,  the  person  on  whose  death  it  issued)  hath  died  seized  in  fee  simple.  But  here  the 
warrant  recites  the  dying  seized  of  the  aforesaid  Elizabeth  Aisquith  as  the  giound  of 
the  escheat ;  and  it  appears  from  the  defendant's  own  shewing,  that  she  did  not  die 
seized  in  fee  simple  ;  but  that  the  land  descended  from  her  to  her  son,  as  issue  in 
tail,  and  no  attempt  is  made  to  show,  that  the  land  was  otherwise  liable  to  escheat. 

The  admission  of  the  parties,  which  is  at  least  equal  to  the  result  of  a  trial  at  law, 
has  precluded  a  point,  which  might  perhaps  have  been  otherwise  made. 

Upon  the  whole,  it  is  adjudged,  and  ordered,  that  the  caveat  of  William  Aisquith 
against  Samuel  Godman's  certificate  of  lot  No.  40,  in  the  city  of  Baltimore,  be,  and 
it  is  hereby  declared  to  be  good,  but  that  each  party  shall  bear  his  own  costs. 


Hammond,  in  behalf  of  the  Baltimore  Company  t>.  Godmak. — 2Sth  Decem- 
ber, 1799. — Hanson,  Chancellor. — The  caveator  having  taken  out  a  subpcena  from 
chancer}',  for  the  defendant  to  appear  here  on  this  day,  to  answer  the  said  caveat ; 
and  the  defendant  appearing,  as  he  alleges,  in  consequence  of  the  service  on  him  of 
the  said  subpcena,  which  is  by  him  produced,  there  was  presented  to  the  Chancellor 
in  behalf  of  the  said  caveator,  and  as  the  siipport  of  his  caveat,  a  deed  from  Daniel 
Nicholson,  for  conveying  to  the  company  aforesaid  the  land  in  question.  In  the  said 
deed,  Daniel  Nicholson  is  recited  to  be  the  heir  of  John  Nicholson,  the  patentee  of 
the  said  land,  on  whose  supposed  dying  seized  without  heirs,  the  escheat  warrant  in 
this  case  was  obtained  by  the  defendant.  No  proof,  except  the  said  recital  (which 
cannot  operate  otherwise  than  against  the  grantor,  and  those  claiming  under  him,)  is 
offered,  to  prove  that  the  said  land  actually  descended  from  the  patentee  to  tlie  said 
Daniel  Nicholson,  or  that  the  said  patentee  ever  conveyed  or  devised  the  said  land  to 
any  person  whatever,  or  that  the  said  patentee  has  left  any  person  capable  of  taking 
as  his  heir. 

On  a  certificate,  returned  to  this  office,  in  consequence  of  an  escheat  warrant,  it  is 
the  settled  rule  and  practice,  founded  on  the  plain  principle  of  benefit  and  convenience 
to  the  State,  and  on  common  sense,  that  the  caveator  of  the  certificate  shall  shew  a 
title  in  himself,  or  in  some  other  person.  If  he  cannot  do  this,  why  should  not  the 
person,  who  applies  for  the  land  as  escheat,  and  is  willing  to  pay  the  State  accord- 
ingly, be  allowed  to  take  a  patent.  The  State  assuredly  is  interested  in,  or  at  least 
cannot  suffer  from  permitting  him  to  take  it  as  escheat,  on  the  prescribed  terms. 
He  alone  incurs  a  risk ;  and  the  patent,  which  he  obtains,  is  not  to  invalidate,  or 
affect,  the  right  of  any  other  person.  The  patent  puts  him  in  a  condition  fairly  to 
contest  the  question  with  any  person,  who  claims  the  land,  under  a  superior  title  ; 
and  it  is  certainly  nothing  more  than  right,  that  the  title  be  fairly  tried  in  ejectment. 
Whatever  title  the  aforesaid  company  has  in  the  land,  it  will  not  be  affected  by  a 
patent  to  the  defendant. 

The  Chancellor  makes  these  remarks,  because  he  conceives  it  probable,  that  the 
practice  and  rules  of  this  office  may  not  be  generally  understood. 

Om  the  whole,  it  is  adjudged  and  ordered,that  the  caveat  of  William  Hammond  against 
Samuel  Godman's  certificate  of  a  tract  of  land,  called  Nicholson's  Delight  Rectified, 
be,  and  it  is  hereby  declared  to  be,  dismissed  ;  and  that  the  said  caveator  pay  to  the  de- 
fendant, Samuel  Godman,  all  costs,  by  him  incurred  in  defence  of  the  caveat  aforesaid. 


CUNNINGHAM  v.  BROWNING.  ojg 

satisfaction  of  their  claims. (m)  But  the  most  common  ground  of 
caveat  is,  that  the  lands  specified  in  the  certificate  on  which  the 
patent  is  asked,  are  not  vacant ;  but  are,  in  whole  or  in  part, 
included  in  an  elder  warrant,  entry,  survey,  or  patent. (/«)  And, 
wherever  the  same  land  is  contained  in  the  certificates  of  both  par- 
ties to  a  caveat,  it  is  considered,  that  each  of  the  parties  has 
caveated  his  antagonist,  (o) 

The  method  of  bringing  a  controversy,  instituted  by  a  caveat,  to 
a  hearing  appears  to  have  been  taken  from  that  pursued  in  England ; 
and  was  always,  from  a  very  early  period  of  the  provincial  govern- 
ment, essentially  the  same  as  at  present,  (p)  On  a  caveat  being 
entered,  both  parties  may  be  considered  as  actors ;  for,  if  called 
for,  by  either  party,  an  order  may  be  pjjissed  appointing  a  day  for 
hearing ;  but  no  caveat  can  be  dismissed  without  hearing,  or  giving 
the  parties  an  opportunity  of  being  heard.  (9)  After  a  party  has 
thus  obtained  an  order  appointing  a  day  for  hearing,  a  suhpcena 
is  issued  from  the  chancery-  office  under  the  great  seal,  as  formerly, 
to  summon  the  opposite  party  to  appear  before  the  Chancellor  to 
maintain,  or  to  answer  the  caveat.  And  suhpcenas  may,  in  like 
manner,  be  issued  to  summon  witnesses  to  testify,  (r)  If  required, 
the  parties  may,  by  the  same  or  a  separate  order,  obtain  authority 
to  take  the  depositions  of  witnesses  before  any  justice  of  the  peace 
on  giving  notice  as  usual,  and  also,  a  direction  to  the  surveyor  of 
the  county,  or  some  other  impartial  person  to  survey  the  lands,  and 
lay  down  the  conflicting  pretensions  of  the  parties  ;  and  the  sur- 
veyor may  summon  witnesses  to  give  evidence  on  the  survey. (s) 
Upon  the  return  of  all  which,  on  the  day  appointed,  the  arguments 
of  the  parties  are  received  by  themselves,  or  their  attorneys  either 
orally  or  in  writing ;  unless  before,  or  on  that  day,  further  time  be 
allowed  for  the  hearing,  of  which  the  party  obtaining  the  order 
must  give  his  antagonist  notice. (<) 

The  applicant  for  the  patent  must  make  out  his  case  by  shewing 
himself  entitled  to  a  patent  for  the  tract  of  land  he  has  caused  to 
be  designated  in  his  warrant,  his  entry  on  the  surveyor's  book, 
or  by  his  certificate  ;  and  thus,  in  general,  holding  the  affirmative,  he 
opens  and  concludes  the  argument.  (?/,)     After  which  the  case  is 

(wi)  1783,  ch.  78.— (n)  Land  Ho.  Ass.  83;  West  i-.  Hughes,  1  H.  &,  J.  9. 
(0)  West  V.  Hughes,  1  H.  &,  J.  10.— (p)  Land  Ho.  Ass.  73,  83.— (g)  Ganetson  v. 
Cole,  1  H.  &  J.  374 ;  April  1782,  ch.  38,  s.  8.— (r)  Land  Ho.  Ass.  331,  488  \ 
April  1782,  ch.  38,  s.  ll.--(s)  Land  Ho.  Ass.  426,  4S8  ;  1789,  ch.  35,  s.  6.— (/)  Land 
Ho.  Ass.  489.— (m)  Land  Ho,  Ass.  453. 


320  CUNNINGHAM  v.  BROWXIXG. 

decided  by  the  Chancellor  according  to  right,  to  reason,  and  to 
good  conscience ;  or  in  other  words,  according  to  the  rules  of  the 
Land  Office,  and  the  whole  law  properly  applicable  to  the  case  :(v) 
or  he  may  decree  thereon  according  to  equity  and  good  conscience, 
and  agreeably  to  the  principles  established  in  the  High  Court  of 
Chancery,  as  if  the  matter  were  brought  before  him  by  a  bill  in 
Chancery. (t^)  If  the  certificate  be  incorrect  the  Chancellor  may, 
at  the  instance  of  the  party,  order  the  survey  to  be  corrected  in 
such  manner  as  he  shall  direct,  (a:)  In  some  cases,  if  the  certificate 
be  vacated,  he  may  order  other  warrant  to  be  issued  to  the  party 
to  the  amount  of  the  vacated  certificate  on  which  the  composition 
had  been  paid  ^(y)  and,  as  in  chancery,  he  may  award  costs  and 
enforce  the  payment  of  them  to  the  prevailing  party,  (r) 

It  is  said,  there  are  some  instances  to  be  found,  within  the 
early  periods  of  the  provincial  government,  in  which  controversies 
instituted  by  caveat  have  been  tried  in  the  courts  of  common 
law.  (a)  In  proceeding  by  scire  facias  in  Chancery  to  repeal  letters 
patent,  where  an  issue  of  fact  is  joined  between  the  parties,  as  the 
Chancellor  cannot  call  a  juiy  before  him,  the  case  is  sent  to  a  court 
of  common  law  for  the  purpose  of  obtaining  the  verdict  of  a  juiy 
upon  it. (6)  And  so,  in  the  instances  alluded  to,  it  might  formerly 
have  been  the  practice  here  in  cases  of  caveat,  as  on  a  scire  facias^ 
to  have  the  facts  found  by  a  jury  convened  in  a  court  of  common 
law.  But  however  that  may  have  been,  it  is  certain,  that  no  such 
practice  appears  to  have  ever  prevailed  in  England,  and  that  here, 
all  caveat  cases  are  now  exclusively  and  finally  determined  by  the 
Chancellor,  from  whose  decision  there  never  was,  nor  is  at  the  pre- 
sent time  any  appeal  allowed. (c)  But,  although  there  be  no  appeal 
properly  so  called ;  yet  the  party,  if  refused  a  patent,  might  have 
obtained  redress  from  the  sovereign,  and,  in  that  respect,  unlimited 
discretion  of  the  lord  proprietary ;  or  he  may  at  present  obtain  it 
from  the  General  Assembly  of  the  State:  or  if  the  patent  should 
be  granted,  the  caveator  is  not  concluded  by  it,  for  he  may  have  it 
repealed  by  information  or  scire  facias  in  Chancery,  or  nullify  its 
operation  in  an  action  at  common  law.(d)     So  that  in  either  alter- 

{v)  Land  Ho.  Ass.  316,  373,  374,  400,  446,  452,  462  ;  November,  17S1,  ch.  20, 
s.  6.— (w)  1789,  ch.  33,  s.  4 ;  Land  Ho.  Ass.  384  ;  Hammond  r,  Wai-field,  2  H.  & 
J.  151.— (a;)  Land  Ho.  Ass.  403,  420,  450  ;  West  v.  Hughes,  1  H.  &  J.  9.— (y)  Land  . 
Ho.  Ass.  473.— (2)  1797,  ch.  114,  s.  8.— (a)  Land  Ho.  Ass.  84,  note  ;  Noland  v.  Crom- 
well, 4  Mun.  160.— (6)  1  Mad.  Chan.  4.— (c)  Land  Ho.  Ass.  388,  409,  410, 415,  41S, 
424.— (rf)  November,  1781,  ch.  20,  s.  13 ;  Carvill's  Lessee  v.  Griffith,  1  H.  &  McH. 
316 ;  Report  of  D.  Dulany,  1  H.  &  McH.  554. 


CUNNINGHAi,!  v.  BROWMNG.  321 

native  of  putting  or  withholding  the  great  sea],  a  direct  appeal,  in 
caveat  cases,  is  thus  rendered  unnecessary ;  and,  as  reo-ards  the 
rights  of  the  State,  nugatory  if  not  entirely  improper.  (^) 

When  a  patent  has  been  finally  authenticated,  by  having  had 
the  great  seal  affixed  to  it,  there  can  be  no  proceedings  in  the 
Land  Office,  by  caveat,  in  relation  to  it,  the  Chancellor's  legal 
jurisdiction  in  that  form,  as  keeper  of  the  great  seal,  having  been 
thus  entirely  cut  off;(y)  except  in  the  case  of  a  patent  obtained  in 
secret  trust  for  a  surveyor. (^)  After  a  patent  has  been  thus  finally 
passed,  it  is,  before  its  being  delivered,  recorded  together  with  -the 
certificate,  assignment,  petition,  and  order  on  which  it  was 
granted. (A)  But  it  must  be  recollected,  that  all  cases  of  caveat  on 
the  Eastern  Shore  are  there  brought  before  the  judge  of  the  Land 
Office  for  the  Eastern  Shore,  from  whose  judgment  there  is  an 
appeal  allowed  to  the  Chancellor,  (i) 

(e)  Land  Ho.  Ass.  496.— (/J  Land  Ko.  Ass.  495.— (g)  1789,  ch.  35,  s.  2.— (A)  Land 
Ho.  Ass.  495. 

(i)  1795,  ch.  61. 

Willing  v.  Wright. — 25th  May,  1S02. — IIaxsox,  Chancellor. — This  is  the  case 
of  an  appeal  to  the  Chancellor  from  the  decision  of  the  judge  of  tlie  land  office  of 
the  Eastern  Shore.  The  act  of  asseinbh",  creating  the  place  of  the  said  judge,  and 
giving  an  appeal  from  his  decision,  not  having  directed  in  what  manner  the  appeal 
shall  be  prosecuted ;  but  a  transcript  from  tlie  register  of  the  said  office,  to  the  re-ns- 
ter  of  this  office,  of  proceedings  in  the  case  of  Evans  Willing  against  Sowan  Wright, 
having  been  here  filed  ;  and  the  said  Wright  praying  the  Chancellor  to  take  order  in 
the  case,  for  the  purpose  of  bringing  it  to  a  final  decision  ;  the  Chancellor,  on  delibe- 
ration, passed  an  order  on  the  6th  day  of  March  last,  to  be  served  on  the  said  Wil- 
ling. In  case  of  such  service,  and  the  appearance  here  on  this  day  of  Williu"-,  in 
person,  or  otherwise,  the  Chancellor,  according  to  the  said  order,  was  to  proceed  to 
an  examination  and  decision.  In  case  of  such  service,  and  no  appearance,  tlie 
Chancellor,  according  to  the  said  order  was  to  dismiss  the  appeal. 

Now  here,  this  day  come  both  parties.  Willing  acknowledges  tlie  due  service  of 
the  order,  and  does  not  say  otherwise,  than  that  he  is  ready  for  a  decision. 

On  examination  of  the  said  transcript,  and  of  certain  papers  mentioned  in  it,  the 
Chancellor  perceives  no  reason,  wherefore  he  should  reverse  the  decision.  Indeed 
the  transcript  is  so  defective,  that  he  can  scarcely  perceive  what  were  tlie  points  of 
dispute.  However,  there  is  nothing  in  it  to  show,  how  Willing,  the  caveator  and 
appellant  can  possibly  be  injured  by  Wright's  obtaining  a  patent,  and  although  it  is 
very  unusual  with  the  Chancellor  to  give  an  opinion  on  a  point  of  law,  he  does  not 
hesitate  to  concur  with  the  judge's  opinion,  on  wiiat  appears  the  great  point,  viz. : 
the  construction  of  Panter's  will  to  Hall.  The  point  indeed  is  so  plain,  as  not  pos- 
sibly to  admit  of  a  doubt  amongst  lawyers. 

Upon  the  whole,  it  is  adjudged,  ordered  and  decreed,  that  the  order  and  adjudica- 
tion of  Thomas  I.  Bullett,  judge  of  the  land  office  of  the  Eastern  Shore  of  Mary- 
land, in  the  case  aforesaid,  of  Evans  Willing  against  Sowan  Wright,  made  on  the 
24th  January  ISOl,  be  and  it  is  hereby  affirmed,  or  that  tlie  appeal  of  the  said  Wil- 
ling firom  the  said  order  and  adjudication,  is  hereby  dismissed ;  the  Chancellor  beic 

41 


322  CUNNINGHAM  r.  BROWNING. 

From  all  which  it  appears,  that  the  mode  of  obtaining  a  grant 
of  public  lands,  and  proceedings  by  caveat,  on  the  common  law 

really  doubtful,  whether,  under  all  circumstances,  the  appeal  should  be  said  to  be 
dismissed,  or  the  decision  of  the  judge  be  said  to  be  affirmed.  The  meaning  of  the 
Chancellor  is,  that  nothing  be  gained  by  the  appeal,  and  that  hereafter  it  be  no 
obstacle  to  the  said  Wright's  obtaining  a  patent. 

The  said  act  of  assembly  does  not  direct,  what  shall  be  done  in  case  of  an  affirm- 
ance on  an  appeal.  But  the  Chancellor  conceives,  that  he  may  with  propriety  direct, 
and  accordingly  he  does  hereby  direct,  that  the  transcript  aforesaid  be  returned,  along 
with  an  attested  copy  of  this  adjudication,  order  or  decree,  to  the  register  of  the 
land  office  of  the  Eastern  Shore ;  and  that,  on  the  receipt  of  the  said  transcript,  there 
shall  be  the  same  proceedings  in  the  said  office,  on  the  certificate  of  resurvey  of 
Sowan  Wright,  which  was  caveated  by  Evans  Willing,  as  if  there  had  been  no  appeal 
as  aforesaid.  

Hopper  v.  Coleston. — 2d  March,  1S03. — Hanson,  Chancellor. — The  said  Wil- 
liam Hopper  appeals  from  the  decision  of  the  judge  of  the  land  office  for  the  Eastern 
Shore,  on  a  caveat  there  instituted  by  him  against  the  appellee,  or  defendant.  The 
transcript  of  the  proceedings  in  the  said  office  on  the  said  caveat,  except  the  plat 
there  exhibited  for  illustration,  are  here  filed  by  the  said  appellee  ;  and  it  was,  at  his 
instance,  that  this  day  was  appointed  for  hearing  the  appeal,  by  an  order,  passed  on 
the  1st  day  of  December  last.  It  appears,  that  a  copy  of  the  said  order  has  been 
duly  served  on  the  appellant,  from  whom  the  Chancellor  lately  received  a  letter, 
praying  a  postponement  of  the  hearing.  The  defendant,  James  Coleston,  now  appears 
here,  in  person,  and  prays  the  Chancellor  to  proceed  to  a  decision. 

As  Mr.  Hopper's  application  for  a  postponement  is  principally  grounded  on  the 
idea,  that  the  Chancellor  may  direct  new  evidence  to  be  taken,  before  he  decides,  in 
the  same  manner,  as  if  he  were  about  to  exercise  an  original  jurisdiction,  this 
ground  must  certainly  fail.  An  appellate  jurisdiction  has  to  decide  merely  whether 
or  not  tlie  inferior  jurisdiction  gave  a  just  decision  on  the  case  before  it.  Were  the 
appellate  jurisdiction  to  admit  new  proofs,  it  would  decide  on  a  case,  different  from 
that  which  was  before  the  lower  tribunal ;  and  therefore,  it  would  not  appear,  from 
its  decision,  whether  the  first  decision  was  right  or  wrong. 

The  Chancellor  proceeded  to  examine  tlie  transcript,  with  a  view  of  being  informed 
of  the  nature  of  the  case.  Mr.  Hopper  had,  in  his  letter,  stated,  that  indisposition 
would  prevent  his  attendance  on  this  day.  It  was  the  Chancellor's  intention,  if  the 
case  should  appear  difficult,  or  if  the  transcript  should  be  materially  defective,  to 
postpone  the  decision. 

It  is  certain,  that  the  plat,  for  illustration,  ought  to  have  been  part  of  the  proceed- 
ings, transmitted  to  this  office  ;  but  the  full  perspicuous  statement,  made  by  the  judge 
enables  the  Chancellor  to  understand  the  case,  as  fully  without,  as  with  the  plat ; 
and  there  seems  to  be  not  the  least  difficulty  in  the  case,  every  point  therein  having 
long  since  been  settled  in  this  office. 

A  question  indeed  might  be  made,  whether  or  not  an  appellate  court  can  give 
relief  to  an  appellee  ;  that  is  to  say,  whether  or  not  the  said  court  ought  not  to  con- 
fine itself  to  the  question,  whether  or  not  the  appellant  is  entitled  to  relief.  But  the 
High  Court  of  Appeals,  in  the  case  of  Scott  against  Chapline,  gave  relief  to  Scott, 
who  was  satisfied,  and  did  not  appeal,  against  Chapline  who  was  dissatisfied,  and 
therefore  did  appeal.  But  setting  this  precedent  aside,  the  Chancellor  conceives  it 
his  duty  to  rectify  mistakes  in  whatever  way  he  may  be  apprized  of  them  ;  and  par- 
ticularly to  have  the  rules  here  established  to  prevail  on  the  Eastern  Shore. 


^  CUNNINGHAM  v.  BROWNING.  323 

side  of  the  Court  of  Chancery,  to  prevent  the  emanation  of  a 
patent,  are,  and  always  have  been  substantially  the  same  in  Mary- 
land as  in  England ;  insomuch  so  as  to  leave  little  room  to  doubt, 
that  the  law  and  the  forms  of  proceeding  of  Maryland,  in  relation 
to  the  making  out  of  grants,  and  the  proceeding  by  caveat,  were 
derived  entirely  from  those  of  England  with  only  such  modiifica- 
tions  here  as  the  circumstances  of  the  country  required. 

But  by  an  act  of  assembly  touching  the  taking  up  of  land, 
passed  during  the  government  of  the  first  lord  proprietary,  it  was 

The  judge  of  the  Eastern  Shore  land  office  in  efTect  has  said,  that  Coleston  could, 
under  his  warrant,  survey  no  land  which  did  not  correspond  to  the  description  or 
location  of  his  warrant.  But  it  hag  been  here  long  since  settled,  that  a  .special  war- 
rant shall  be  allowed  to  do  every  thing,  which  a  common  warrant  might  do.  It 
appears,  that  a  common  warrant  might  have  affected  any  part  of  the  vacancy  com- 
prehended in  Coleston's  certificate,  that  is  to  say,  that  no  other  warrant  affected  it; 
and  therefore  it  is  rightly  comprehended  in  Coleston's  certificate.  The  Chancellor 
is  glad  of  an  opportunity  of  informing  the  judge  of  the  Eastern  Shore  land  office  of 
an  important  point,  of  which  the  said  judge  could  not  reasonably  be  supposed  to  be 
apprized ;  and  which  whether  it  be  right  or  wrong  the  present  Chancellor  did  not 
decide.    It  was  in  fact  decided  under  the  former  government. 

Under  a  common  warrant  any  uncultivated  vacant  land,  not  before  surveyed,  or 
located,  may  be  affected.  A  special  warrant  of  vacant  cultivation  is  intended  to  affect 
z.  particular  vacancy  described  in  the  warrant.  If  it  accurately  describes  the  vacanc)^ 
it  effectually  binds  it,  against  all  subsequent  warrants  or  locations.  But  nothing  is 
better  established  than  this, — that  a  special  warrant  of  vacant  cultivation  may  aban- 
don its  first  intention  and  may  be  used  to  affect  any  lands,  which  may  be  affected  by 
a  common  warrant,  however  distant  they  may  be  from  the  land  described  in  the  spe- 
cial warrant. 

It  appears  then  to  the  Chancellor,  that  the  judge's  direction  to  exclude  the  vacancy 
not  contiguous  to  the  land,  mentioned  in  the  special  warrant,  is  wrong ;  and  that 
Coleston  is  entitled  to  a  patent  for  every  part  of  the  land,  included  as  vacancy  in  his 
certificate,  when  certificates  of  the  several  parts  shall  be  returned,  and 

It  is  accordingly  adjudged  and  ordered,  that  the  transcript  of  the  record  in  this 
case  be  returned  to  the  aforesaid  judge,  and  that  he  be  and  is  hereby  directed  to  pro- 
ceed, and  to  direct  proceedings  for  carrying  into  effect  his  decision  for  returning  as 
many  separate  certificates  of  the  vacancy,  surveyed  for  the  defendant,  James  Cole- 
ston, as  there  appear  to  be  distinct  pieces  of  vacancy,  in  the  certificate  of  "  Guar- 
dian's Neglect." 

The  Chancellor's  decision,  or  rather  his  declaration  of  the  rules  of  the  land  office 
is  simply  as  follows  : — whatever  may  be  done  by  a  common  warrant,  may  be  affected 
by  a  special  warrant  of  vacant  cultivation.  It  makes  no  difference  whether  or  not 
the  survey  under  a  special  warrant  includes  part  of  the  land  designated  by  the  spe- 
cial warrant.  In  fact  the  important  difference  between  the  two  warrants  is,  that  the 
special  warrant,  before  survey,  affects  the  land  accurately  described  in  it.  The  com- 
mon warrant  affects  no  land,  until  it  is  surveyed,  or  located  with  the  surveyor.  When 
a  certificate  has  returned  two  or  more  distinct  tracts,  each  having  a  certain  beginning, 
the  surveyor  is  directed  to  return  several  distinct  certificates  on  each  of  which  a 
patent  is  to  be  obtained. 

As  to  costs,  tliey  are  left  to  the  discretion  of  the  judge. 


324  CUNNINGHAM  r.  BROWNING. 

among  other  things  declared,  that  every  one  claiming  title  to  any 
land  in  certain  to  be  holden  of  his  lordship,  may  demand  his  claim 
to  be  entered  upon  record,  and  such  entry  shall  bar  all  ensuing 
grants  of  the  same  land  till  the  claim  be  tried.(j)  This  legislative 
provision  may  probably  have  been  the  suggestion  from  which  spe- 
cial warrants  arose  ;  and  it  is  also  not  unlikely,  that  it  gave  rise  to 
a  practice,  which  was  introduced  not  long  after,  of  designating  the 
land  intended  to  be  surveyed  by  a  caveat  in  the  office,  and  the 
marking  of  trees  as  a  still  more  conclusive  location  and  appropria- 
tion of  the  land  until  it  could  be  actually  surveyed.  But  this  mode 
of  designating  lands  by  caveat  endured  but  a  short  time,  and  is 
now  entirely  obsolete.  (A;)  A  caveat  against  the  emanation  of  a 
patent,  it  will  be  recollected,  has  always  been  regarded  as,  in  fact, 
the  commencement  of  a  judicial  controversy ;  whereas  this  caveat 
in  the  office  was  nothing  more  than  a  warning  to  all  persons  not  to 
take  up  the  lands  therein  described  ;  it  was  in  truth  no  more  than 
a  special  entry  of  the  party's  claim  upon  record,  like  that  made  in 
a  special  warrant,  or  in  a  surveyor's  book ;  and  had  no  analogy 
w^hatever  to  a  caveat  in  chancery.  It  may  also  be  well  to  recol- 
lect, thatthe  proceeding  by  caveat  in  the  Orphans  Court,(/)  as  derived 
from  the  ecclesiastical  courts  of  England, (m)  is  essentially  differ- 
ent from  the  caveat  in  chanceiy  against  the  emanation  of  a  patent. 
And  the  term  caveat  has  in  our  judicial  proceedings  been  applied 
in  other  cases  as  an  admonition  to  the  court  not  to  do  certain  acts, 
to  which  a  party  objected,  until  he  could  be  heard  ;  as  not  to  record 
depositions  taken  under  a  commission  to  mark  and  bound  lands, (n) 
or  not  to  enter  up  a  judgment  or  pass  a  decree  upon  an  award,  and 
the  like.(o) 

We  may  now  pass  on  to  the  consideration  of  the  case  brought 
before  the  court  by  this  caveat  in  the  Land  Office. 

According  to  the  known  and  long  established  principles  upon 
which  public  lands  may  be  acquired  by  an  individual  from  the 
State,  the  title  commences  with  the  designation  of  the  tract  by  the 
purchaser.  After  the  date  of  the  designation,  and  before  a  grant 
has  been  issued,  the  title  is  inchoative,  and  imperfect ;  but  when  a 
grant  has  been  obtained,  the  title  is  then  absolute  and  complete.  A 
sufficient  description  of  the  land  intended  to  be  secured  gives  an 

U)  1642,  ch.  51 ;  Land  Ho.  Ass.  248.— (/c)  Land  Ho.  Ass.  215.— (Z)  Dep.  Com. 
Gu.  160;  1798,  ch.  101,  Sub-ch.  2,  s.  9.— (w)  1  Jac.  Law  Diet.  407.— (n)  Rochr. 
Giles,  1  H.  £c  McH.  1G6.— (o)  Dorsey  v.  Jeoffray,  3  H.  &  McH.  121 ;  Shelf.  Lun. 
&  Idiots,  101, 654,  J324 ;  In  maiicr  of  Fust,  1  Cox.  418. 


CUNNINGHAM  v.  BROWNING.  325 

incipient  title  against  every  person  who  has  not  before  taken  some 
method  to  secure  the  same  laTid.(/j)  It  is  held,  upon  common  law 
principles,  that  the  grant  relates  back  to  the  date  of  the  specifica- 
tion ;  and,  by  a  kind  of  jus  j^osUiminii,  the  purchaser  is  deemed  to 
have  had  a  perfect  legal  title  from  that  period  to  all  intents  and 
purposes  whatever.  (9)  He  may  maintain  an  action  of  trespass  for 
any  injui'y  done  to  the  land  within  that  interval  of  time  ;(?•)  and  he 
may,  in  that  interval,  if  he  has  paid  the  whole  caution  money, 
obtain  a  warrant  of  resurvey,  which  is  only  incident  to  a  legal 
title,  and  cannot  be  founded  upon  a  mere  equitable  right  of  any 
kind.(s)  On  the  death  intestate  of  the  holder  of  such  an  imperfect 
legal  title,  the  right  descends  to  his  heirs,  as  real  estate,  to  whom 
alone  the  patent  can  be  granted.  This  doctrine  of  relation  is  founded 
upon  principles  of  common  law  altogether  and  exclusively. (^) 
There  are,  however,  some  cases  in  which  this  imperfect  title,  which 
precedes  the  grant,  is  spoken  of  as  being  an  equitable  interest. (u) 
But  that  cannot  properly  be  called  an  equitable  title,  which  a  court 
of  equity  cannot  enforce,  or  have  specifically  executed.  And  it 
would  seem  strange  to  call  that  an  equitable  title,  w^hich,  after  a 
grant  has  issued,  all  common  law  courts,  upon  the  common  law 
principle  of  relation,  treat  as  the  commencement  of  a  perfect  legal 
title.  Besides,  to  speak  of  an  imperfect  legal  title  as  an  equitable 
interest,  has  a  tendency  to  confuse  legal  distinctions,  and  to 
obscure  that  which  is  otherwise  sufficiently  plain  and  clear. 

In  reference  to  the  jurisdiction  of  the  Chancellor,  in  cases  of 
caveat,  the  distinction  between  legal  and  equitable  rights,  properly 
so  called,  is  unknown.  The  true  and  only  difference,  as  regards 
his  power  in  such  cases,  being  that  which  exists  between  imperfect 
and  perfect  legal  titles ;  those  which  are  merely  in  feri,  and  those 
which  are  complete.  The  cognizance  of  all  controversies  respect- 
ing imperfect  legal  titles  derived  immediately  from  the  State, 
belongs  exclusively  and  finally  to  the  Chancellor  in  his  common 
law  capacity  as  the  keeper  of  the  great  seal,  the  affixing  of  which 
is  essential  to  the  authentication  of  a  patent ;  which  capacity  of 
the  Chancellor,  as  relates  to  patent  grants  for  land,  is  designated 

(p)  Land  Ho.  Ass.  461.— (7)  3  Blac.  Com.  210.— (/•)  Chapline  v.  Harvey,  3  R.  & 
McII.  396.— (s)  Land  Ho.  Ass.  152,  149,  420,  427,  447,  455.— (/)  Lloyd  v.  Tilgh- 
man,  1  H.  &  McH.  85 ;  Spalding  v.  Reeder,  1  H.  Sc  McH.  189  ;  Hath's  Lessee  v. 
Polk,  1  H.  Sc  McH.  363  ;  Report  of  D.  Diilany,  1  H.  &  McH.  553  ;  Kelly's  Lessee  v. 
Greenfield,  2  H.  &  McH.  133  ;  West  v.  Hughes,  1  H.  &  J.  13 ;  Beall's  Lessee  v.  Beall, 
1 H.  &  J.  347.— (w)  HoAvard  v.  Cromwell,  4  H.  Sc  McH.  329, 8t  1  H.  &  J.  118  ;  Ring- 
gold V.  Malott,  1  H.  &  J.  317  ;  Beall's  Lessee  v.  Beall,  1  H.  &  J.  348. 


326  CUNNINGHAM  v.  BROWNING. 

by  his  style  of  judge  of  the  Land  Office.  The  rules  of  decision  by 
which  the  Chancellor  is  governed  in  the  exercise  of  his  jurisdiction, 
in  all  such  cases,  are  to  be  found  in  the  established  law  of  the  Land 
Office,  or,  in  the  absence  of  any  such  positive  law,  the  rule  of 
decision  may  be  drawn  from  the  principles  of  equity  as  established 
in  the  High  Court  of  Chancery.  The  whole  law  of  the  Land  Office 
is  thus  made  up  of  certain  positive  regulations,  of  usages,  and  of 
common  law  and  equitable  principles  respecting  imperfect  legal 
titles  ;  or  those  contracts  for  land  between  the  State  and  her  citizens 
which  are  found  in  an  immature  and  unfinished  condition. 

It  is  a  well  settled  general  rule,  that  under  a  special  warrant  the 
title  to  the  land  commences  from  the  date  of  the  warrant  itself; 
because  the  description  of  its  location,  embodied  in  the  warrant, 
has  distinguished  it  from  every  other  tract.  The  warrant  is,  there- 
fore, in  itself  equivalent  to  a  designation  by  an  actual  survey. 
So  too  the  title  commences  with  the  date  of  a  warrant  of  resurvey, 
and  of  an  escheat,  or  a  proclamation  warrant.  But  upon  a  common 
warrant,  it  only  commences  with  the  date  of  the  certificate  of 
survey ;  or  from  the  date  of  the  entry  of  a  special  location  upon 
the  surveyor's  book.  The  land  aimed  at  becomes  thus  bound, 
because  of  its  having  been,  by  some  of  these  modes,  accurately 
described  and  distinctly  specified.  The  reason  of  the  rule  is  the 
same  in  all  these  cases,  and  the  evils  to  be  avoided  alike  in  all. 

The  citizen  is  allowed  one  year,  from  the  time  he  designates 
the  land  he  proposes  to  obtain,  to  complete  his  purchase, 
and  perfect  his  title  according  to  the  prescribed  rules.  During 
which  time  the  State  stands  pledged  to  sell  that  land  to  no  one 
else.  But  the  State  might  be  greatly  retarded,  embarrassed  and 
defrauded  in  making  sale  of  its  lands,  if  they  could  be  tied  up, 
and  held  bound  by  any  loose,  shifting,  or  indefinite  description 
of  them.  And  the  allowing  of  lands  to  be  bound  by  vague 
descriptions,  would  be  no  less  grievous  in  its  consequences  to 
individuals.  No  purchaser  could  be  sure  of  his  purchase.  He 
might  be  jostled  out  of  his  location  by  one  who  had  given  no 
previous  distinct  intimation  of  its  being  that  place  or  tract  which 
he  had  in  view.  The  records  would  furnish  no  sure  guide ;  and 
the  chief  distinction  between  a  common  and  a  special  warrant 
would  be  frittered  down  to  nothing,  or  continued  only  as  a  delusive 
name.(aj) 

C»)  Report  of  D.  Dulany,  1  H.  &  McH.553;  Land  Ho.  Ass.  401. 


CUNNINGHAM  v.  BROWNING,  327 

All  the  questions  that  have  been  raised,  in  the  discussion  of  the 
merits  of  this  caveat,  are  therefore  resolvable  into  this  one :  What 
is  that  degree  of  accuracy  of  the  description  of  the  land  aimed  at, 
which  is  deemed  necessary  in  a  special  warrant  to  give  it  a  binding 
effect?  Upon  this  subject  there  seem  to  exist  some  difficulties 
which  have  not  yet  been  removed,  although  the  question  has  been 
often  under  the  consideration  of  the  Chancellor. 

The  distinction  between  a  special  and  a  common  warrant,  as  now 
understood,  and  so  well  established,  it  is  said,  was  not  expressly 
and  generally  recognised  until  about  the  year  1750,  when  warrants 
having  a  location,  by  the  specification  of  the  particular  place  where 
the  quantity  of  land  therein  called  for  was  to  be  laid  out,  were 
called  special  warrants,  in  contradistinction  from  common  warrants 
describing  no  place  ;  and  which,  therefore,  might  be  applied  any 
where.  (z«)  It  has  been  laid  down,  that  the  description  contained 
in  a  special  warrant  should  suit  none  but  the  land  contended  for; 
and  should  be  so  full  and  certain  as  plainly  to  point  out  the  inten- 
tion. But  it  is  said,  that,  although  the  exact  lines,  limits,  or 
boundaries,  cannot  be  expected  to  be  set  down  before  the  survey 
is  made,  the  description  may,  at  least,  point  out  to  every  inquirer 
the  general  situation  of  the  land.  It  may  at  least  enable  a  person 
to  say  of  some  spot  or  point  that  it  is  comprehended  within  the 
tract  aflfected  by  the  warrant,  (a:)  And  further,  that  there  is  some  rea- 
son to  doubt  whether  the  rule  was  not  less  strict  before  the  revolu- 
tion ;  since  it  appears,  that  the  special  warrants,  in  the  years  1773  and 
1774,  seldom  went  further  than  to  state  the  vacancy  to  be  adjoining 
to  some  particular  tract  or  tracts,  either  naming  them,  or  the  person 
or  persons  in  possession  of  them. (3/)     In  a  case  where  the  special 


{w)  Land  Ho.  Ass.  84.— (x)  Land  Ho.  Ass.  401. 

(y)  Fowler  v.  Goodwix. — Sth  Jpril,  1809. — Kilty,  Chancellor. — The  proceed- 
ings and  the  grounds  of  the  caveats,  as  stated  in  the  argument,  have  been  fully 
considered,  and  notwithstanding  the  several  objections  made  to  these  certificates,  the 
Chancellor  considers  it  as  a  point  clear  of  any  doubt,  that  the  caveats  cannot  be 
sustained. 

It  appears  that  a  special  warrant  was  obtained  by  Goodwin,  and  others,  on  the  23d 
of  May,  1774,  to  talie  up  400  acres  of  vacant  land,  stated  to  be  adjoining  to  the  following 
tracts  of  land,  or  some  of  them,  viz.  Nicholas  and  John,  3d,  4th,  5th,  6th,  7th,  8th, 
9th,  10th  discoveries,  &,c.  Several  certificates,  including  tliose  now  in  dispute,  were 
returned  in  May,  1776;  and  patents  thereon  not  having  been  issued,  the  present 
caveats  were  entered  in  September,  1S07. 

One  of  the  objections  stated  by  the  caveator  is,  that  patents  were  not  taken  out 
•within  two  years,  according  to  the  11th  section  of  the  orders  and  instructions  in  1733. 
The  Chancellor  is  not  satisfied  of  the  validity  of  this  objection ;  nor  is  he  informed 


328  CUNNINGHAM  v.  BROWNING.     ^ 

warrant  called  for  five  hundred  acres  "  adjoining  the  west  line  of 
Gore,"    it   was   held,  that    the    description    "was    sufficient   to 


of  any  case  in  which  it  has  prevailed.  There  is  apparently  still  less  force  in  tlie 
objection  arising  from  the  situation  of  the  chain-carrier,  as  proved  by  the  deposition 
of  Samuel  Hawkins,  and  also  in  the  tiifling  errors  in  the  phraseology  of  the  warrant, 
which  were  mentioned  in  the  argument.  It  would  seem,  therefore,  that  the  point 
most  relied  on  by  the  caveator,  is  the  want  of  precision  in  the  location,  or  as  he 
expresses  it,  the  location  being  too  broad. 

It  is  certainly  the  interest  of  every  person  who  takes  out  a  special  warrant,  to 
describe  or  locate  the  land  as  clearly  and  precisely  as  he  can,  in  order  to  bind  and 
secure  it  from  the  operation  of  other  warrants ;  but  there  is  no  set  form,  or  expres- 
sion required  in  order  to  comply  with  the  general  rule,  which  (as  laid  down  by  the 
late  Chancellor  in  1793,)  was,  that  the  description  of  the  warrant  should  suit  none 
but  the  land  contended  for,  and  that  it  should  be  so  full  and  certain  as  plainly  to  point 
out  the  intention.  There  is,  however,  some  reason  to  doubt  whether  the  rule  was 
not  less  strict  before  the  revolution,  for  it  appears  that  the  special  warrants  in  the 
years  1773  and  1774,  seldom  went  further  than  to  state  the  vacancy  to  be  adjoining 
to  some  particular  tract  or  tracts,  either  naming  them  or  the  persons  in  possession  of 
them. 

In  the  case  of  Pumphrey  v.  Wallace,  the  reasons  for  allowing  the  caveat  of  the 
latter  are  not  expressed,  and  can  only  be  inferred  from  what  appears  on  the  papers  ; 
because  it  would  be  totally  improper  to  take  the  opinion  of  C.  Wallace,  as  expressed 
in  his  deposition,  or  that  of  any  other  person,  as  evidence  of  such  reasons.  Pumphrcy's 
warrant  was  dated  the  28th  of  December,  1792,  and  executed  on  the  6th  of  February 
1793.  But  Wallace  had  taken  out  a  warrant  of  resurvey  on  the  18th  of  January, 
1793 ;  so  that  the  question  must  have  been  how  far  the  location  made  in  Pumphrey's 
warrant  was  binding,  so  as  to  prevent  the  operation  of  the  warrant  of  Wallace,  which 
bound  all  the  contiguous  vacancy,  supposing  it  not  previously  secured.  The  vacancy 
in  dispute  consisted  of  cultivated  land,  as  appears  by  the  receipt  of  the  treasurer  for 
improvements  ;  and  it  may  be  inferred,  that  the  caveat  was  ruled  good  on  the  ground 
of  the  location  in  Pumphrey's  warrant  being  vague  and  indefinite,  as  was  decided  in 
the  case  of  Beatty  v.  Orendorf,  in  1793,  {Land  Ho.  .-^ss.  400,)  in  which  the  vacancy 
was  also  cultivated  land,  and  the  claim  of  Orendorf  on  a  warrant  of  resurvey. 

It  is  not,  however,  necessary  in  the  present  cases,  to  determine  whether  the  location 
or  description  in  the  warrant,  W'as  sufficient  to  bind  or  secure  the  vacancy  aimed  at, 
or  to  say  what  would  be  the  result  of  the  facts  established  by  the  depositions  and  the 
surveys  returned,  because  the  several  parcels  of  land  returned  in  Goodwin's  certifi- 
cates do  not  appear  to  have  been  cultivated,  or  to  have  had  improvements  thereon ; 
and  therefore  must  be  taken  as  uncultivated,  and  liable  to  be  aflected  by  a  common 
warrant,  and-it  will  be  observed,  that  two  of  the  certificates  returned  by  the  caveator 
on  his  warrant,  supposed  to  include  the  same  land,  are  for  uncultivated  land,  and  the 
improvements  on  the  other  three  are  only  a  few  fence  logs. 

It  was  stated  in  the  argument,  that  the  warrant  was  not  a  proper  one — that  it  was 
neither  a  special  nor  a  common  warrant.  But,  although  it  was  not  simply  a  common 
warrant,  yet  it  might  be  used  as  such,  and  the  general  tenor  of  special  warrants  was, 
and  still  is,  to  direct  the  surveyor  to  lay  out  the  said  quantity,  be  the  same  culti- 
vated or  otherwise.  On  this  subject  the  following  points  appear  to  have  been  settled  : — 
That  a  special  warrant  shall  be  allowed  to  do  every  thing  which  a  common  warrant 
might  do; — that  a  special  warrant  may  abandon  its  first  intention,  and  may  be  used 
to  affect  any  lands  which  may  be  affected  by  a  common  warrant,  however  distant 
they  may  be  from  the  land  described  in  the  special  warrant;  and  that,  in  such  case, 


CUNNINGHAM  v.  BROWNING.  3291 

bind  the  vacancy  to  a  certain  extent;"  but  it  is  not  said  how 
fa.T.{z) 

In  the  various  instances  put  of  describing  the  general  situation ; 
of  referring  to  some  spot  or  point  comprehended  by  the  tract ;  or 
to  the  particular  line,  or  corner,  or  extremity  of  the  tract  to  which 
the  vacancy  is  contiguous,  and  of  such  a  description  being  binding 
to  a  certain  extent ;  it  is  not  said,  nor  is  it  perceived  to  what  extent 
the  binding  effect  of  the  description  would  be  allowed  to  go  ;  nor 
even  if  that  could  be  settled,  is  it  perceived  hovv^  the  fact  of  such 
obligatory  extent  is  to  be  ascertained  and  proved.  It  is  certain 
that  parol  proof  is  wholly  inadmissible  for  any  such  purpose. (a) 
It  has  been  solemnly  declared,  that  a  warrant  for  one  hundred 
acres,  contiguous  to  a  tract,  of  which  the  outlines  are  altogether 
twenty  miles  in  length,  cannot  be  thought  to  give  an  exclusive 
right  to  survey  any  one  hundred  acres  contiguous  to  that  extensive 
tract. (6)  And  it  has  been  laid  down  with  great  attention  as  a  rule, 
that  if  an  angle  of  one  tract  runs  up  to  or  touches  an  angle,  or  even 
a  side  of  another  tract,  there  is  no  contiguity  between  that  other, 
tract  and  the  land  contained  within  the  two  lines  forming:  the 
angle. (c) 

In  judicial  proceedings  involving  the  titles  to  land,  the  term 
location  occurs  very  frequently ;  and  its  meaning  varies  witli  the 
subject  spoken  of.  The  word  is  used  in'  speaking  of  a  point  or 
place  of  beginning,  of  a  line,  and  of  a  whole  tract.  But  in  these 
cases,  the  meaning  and  the  ideas  conveyed  are  different.  When 
the  location  of  a  point  is  the  subject  spoken  of,  an  indivisible  part 
of  space,  a  spot,  comprehending  no  superficial  extent,  is  alluded  to. 


it  makes  no  difference  whether  or  not  the  survey  under  a  special  warrant  includes 
part  of  the  land  designated  by  the  spocinl  warrant.  It  is  well  known  that  a  common 
warrant  binds  or  affects  the  land  at  the  time.of  its  location  with  the  surveyor,  and  a 
fortiori,  it  must  bind  at  the  time  of  the  actual  surveys  which,  in  these  cases,  w^as 
many  years  befoi-e  the  date  of  the  caveator's  warrant. 

The  application  of  the  above  principles  to  tlie  matter  in  dispute,  being  sufficient 
for  its  decision,  it  will  not  be  necessary  to  remark  on  some  other  grounds  of  defence 
which  were  urged  by  the  counsel  for  Goodwin.  But,  with  regard  to  the  opinion  of 
Mr.  Callahan,  the  late  register,  concerning  the  certificates  now  caveated,  as  stated  in 
the  depositions  of  Oliver  Cromwell,  it  is  thought  proper  to  declare  explicitly,  that 
such  evidence  of  the  opinions  of  that  officer  can  have  no  possible  influence  in  any 
case  now  to  be  decided. 

It  is  adjudged  and  ordered  that  the  aforesaid  caveats  be  dismissed  with  costs. 

(2)  Mortland  v.  Smith,  MS.  19th  April,  181.5.— (ff)  Beatty  r.  Orendorf,  Land  Ho. 
Ass.  402.— (6)  Beatty  i-.  Orendorf,  Land  Ho.  Ass.  401.— (c)  Whitford  v.  Jones, 
Land  Ho.  Ass.  413. 

42 


330  CUNNINGHAM  v.  BROWNING, 

When  speaking  of  the  location  of  a  li?ie,  an  idea  of  the  place  of  a 
certain  longitudinal  extension,  limit,  or  boundary,  is  presented  to 
the  mind ;  but  in  contemplating  that  subject,  we  form  no  idea  of 
space,  or  any  superficial  extent.  We  can,  however,  have  no  otlier 
idea  of  the  location  of  a  tract  of  land,  than  that  it  is  a  space,  a 
superficial  extension,  an  area,  a  surface  comprehended  within 
certain  confines.  The  word  location,  in  reference  to  a  tract  of  land, 
must,  therefore,  always  be  attended  with  these  ideas.  It  is  a  place 
of  greater  or  less  extent.  It  may  be  a  small  lot,  or  it  may  be  spread 
out  to  an  extent  of  many  hundreds  of  acres.  It  is  still  an  indi- 
vidual, entire  location,  or  place  small  or  large. 

The  term  location  is  also  often  used  in  our  judicial  proceedings  as 
synonymous  with  the  word  description.  Thus  it  is  said,  that  the 
location  is  uncertain,  that  it  is  ambiguous,  or  that  it  has  a  double 
aspect.  The  word  in  these  instances  evidently  means,  that  the 
description  of  the  place,  the  area,  or  the  space  of  land  is  uncertain, 
ambiguous,  or  that  it  has  a  double  aspect.  Because  the  description 
of  the  land  may  have  one  or  two  aspects  ;  it  may  be  gratified  in  all 
its  parts  by  being  located  in  one  position  or  another.  But,  it  would 
seem  to  be  absurd  to  say,  that  a  place  had  a  double  aspect,  or  that 
it  was  a  place  which  admitted  of  being  put  in  one  place,  or  in 
another  place.  Hence,  in  most,  if  not  all  instances,  by  ambiguity 
of  location,  uncertainty  in  the  description  of  the  location  is  really 
meant.  For  it  is  difficult  to  conceive  how  the  location  of  any  one 
piece  of  land  can  be  deemed  certain,  or  become  known,  in  contra- 
distinctibn  to  any  other  parcel,  but  by  the  accuracy  of  its  description. 
The  location  or  place  of  any  one  space  or  tract  of  land,  it  is  most 
manifest,  can  only  be  distinguished  from  other  spaces  or  tracts  by 
the  preciseness  of  its  description.  And  that  description  does 
nothing  towards  the  designation  of  a  tract  of  land  if  it  stops  short 
of  defining  one  whole  and  separate  space  or  area. 

By  the  rules  for  the  direction  of  surveyors,  the  surveyor  is 
required,  upon  the  receipt  of  any  common  warrant,  to  note  down 
in  a  book  to  be  kept  for  that  purpose,  the  time  of  receiving  it,  the 
quantity  of  acres  included  therein,  the  date  thereof,  and  at  what 
place  the  person  who  obtains  it  locates  the  same.(rf)  So  that  the 
entry  of  a  special  location  in  the  surveyor's  book,  is  substantially 
the  same  as  the  entry  of  a  special  warrant  with  the  register  of  the 
Land  Office.     In  regard  to  which  it  has  been  laid  down,  that  if  a 

(rf)  Land  Ho.  Ass.  435, 


CUNNINGHAM  v.  BROWNING.  33 1 

special  warrant,  "  accurately  describes  the  vacancy,  it  efTectually 
binds  it  against  all  subsequent  warrants  or  locations  ;"  and  further, 
that  "  whatever  may  be  done  by  a  common  warrant,  may  be  effected 
by  a  special  warrant  of  vacant  cultivation.  It  makes  no  difference 
whether  or  not  the  survey  under  a  special  warrant  includes  part  of 
the  land  designated  by  the  special  warrant.  In  fact,  the  important 
difference  between  the  two  warrants,  is,  that  the  special  warrant, 
before  survey,  affects  the  land  accurately  described  in  it.  The 
common  warrant  affects  no  land  until  it  is  surveyed,  or  located  with 
the  surveyor. "(e) 

In  short,  the  designation  of  the  land  given  in  the  special  warrant, 
or  the  entry  upon  the  surveyor's  book,  must  be  such  a  description 
of  a  space,  an  area,  or  a  tract,  as  may  be  understood  and  ascer- 
tained by  proof  of  the  existence  of  the  localities  referred  to ;  it 
must  be  such  an  one  as  will  suit  no  other  land,  and  be  sufficient  in 
itself  without  having  any  substantial  matter  supplied  by  parol 
proof  (y)  This  may  seem  to  be  requiring  too  great  a  degree  of 
strictness ;  but  it  has  long  been  the  established  law,  and  is  not 
more  rigid  than  a  due  regard  to  the  public  good  requires.  Cer- 
tainty is  the  mother  of  quiet ;  and  in  nothing  more  so  than  in  the 
titles  to  lands.  The  vacancy  aimed  at  by  a  special  warrant,  is 
often  embraced  by  two  or  more  other  tracts.  A  reported  example 
of  which  may  be  found  expressed  thus  :  '**about  one  hundred  acres 
vacant  lying  in  A.  A.  county,  and  adjoining  or  between  a  tract 
of  land  in  possession  of  J.  Brown,  a  tract  of  land  belonging 
to  J.  Hall,  and  a  tract  of  land  in  the  possession  of  /.  McDon- 
ald.^\g)  So  in  another  instance  where  a  particular  neck  of  land 
was  described. (A)  Other  examples  may  be  imagined.  Suppose 
the  tract  of  land  called  Bellevoir  to  lay  along,  and  parallel  for  some 
distance,  within  half  a  mile  of  the  river  Severn,  and  the  special 
warrant,  were  expressed  in  these  words  :  "  about  two  thousand 
acres  vacant,  lying  in  A.  A.  county,  between  the  tract  called  Belle- 
voir and  the  river  Severn."  Or,  suppose  Browning's  Spring  to  be 
situated  a  short  distance  west  from  the  mouth  of  the  stream  called 
the  Litde  Crossings,  the  general  course  of  which  was  north  and 
south,  and  the  Panther  Pen  was  a  short  distance  west  of  the  same 
stream  higher  up ;  and  the  description  in  the  special  warrant  was 
tlius :  "  about  200  acres  vacant  lying  in  Allegany  county,  west  of 
and  bounding  on  the   Little  Crossings,  and  between  Browning's 


(e)  Hopper  v.  Coleston,  ante,  ,'}22.— (/)   Beatty  i-.  Orendorf,  Land  Ho.  Ass.  402. 
(g)  Garretson's  Lessee  v.  Cole,  2  H.  &,  McH.  459.— (A)  Land  Ho.  Ass.  87. 


332  CUNNINGHAIM  v.  BROWNING. 

Spring  and  the  Panther  Pen."  In  no  one  of  these  descriptions  is 
any  course,  distance,  or  line  distinctly  named ;  yet  it  is  perfectly 
manifest,  that  each  one  specilies  a  space,  or  area  of  land,  so  very 
accurately,  that  it  cannot  be  mistaken,  and  in  a  manner  that  cannot 
be  made  to  suit  any  pther  land. 

After  what  has  been  said,  the  description  given  in  Browning^s 
special  warrant  can  scarcely  require  a  single  remark.  It  is  deficient 
in  every  particular,  and  in  fact  amounts  to  nothing.  It  does  not 
describe  any  space,  area,  or  tract  of  land  whatever.  It  does  no 
more  than  designate  points  or  spots  ;  but  whether  by  so  doing  it  is 
meant  to  indicate  the  place  where  the  outlines  of  a  tract  are  to 
begin ;  or  whether  the  quantity  called  for  is  to  be  laid  off  round 
them  as  the  centre ;  or  in  what  direction  from  them,  is  not  said. 
But  it  will  be  difficult  to  conceive  of  a  description  which  has  more 
entirely  excluded  every  idea  of  space,  area,  or  tract,  than  that  con- 
tained in  this  special  warrant  of  Browning.  For  every  purpose  of 
giving  title  to  any  tract  of  land,  it  is  a  mere  nullity.  But  allow  to 
it  every  thing  to  which  it  can  pretend ;  let  it  be  considered  as  no 
more  than  a  description  of  the  place  of  beginning ;  and  then,  even 
to  that  extent,  it  can  now  be  of  no  avail  to  the  party ;  since  it 
appears  by  the  certificate  of  survey,  that  the  boundaries  have  not 
been  commenced  at  the  place  thus  specified ;  and  the  survey  not 
having  pursued  the  description  given,  it  is  in  itself  a  total  aban- 
donment of  every  special  pretension  under  the  warrant. (i)  As  to 
the  nature  and  sufhciency  of  the  description  of  the  place  of  begin- 
ning, which  Cunningham  caused  to  be  noted  dovrn  on  the  surveyor's 
book,  nothing  need  be  said,  as  he  has  not  relied  upon  it  for  any 
purpose.  It  appears  from  the  plot  returned,  that  Browning^ s  Hunt- 
ing Ground  runs  entirely  across  Cheviot  Dale.  Browning  may, 
therefore,  have  his  certificate  so  amended  as  to  comprehend  either 
parcel  of  land  w^ithin  the  lines  of  his  present  certificate,  which  is 
not  covered  by  Cheviot  Dale.{j) 

Whereupon  it  is  adjudged,  that  the  caveat  oi  James  Cunningham 
be  and  the  same  is  hereby  ruled  good  as  to  the  w'hole  extent  of 
Browning's  Hunting  Ground  comprehended  within  the  lines  of  the 
tract  called  Cheviot  Bale.  And  it  is  further  adjudged,  that  Meshak 
Browning  have  leave  so  to  amend  his  certificate  as  to  exclude  all 
the  land  lying  within  the  tract  called  Cheviot  Dale  ;  and  that  the 
said  Browning  pay  all  costs. 


(i)  Land  Ho.  Ass.  472,  ASO.~(j)  Garrettson  v.  Cole,  1  H.  &.  J.  374. 


CHASE  V.  MANHARDT  333 


CHASE  V.  MANHARDT. 

On  a  motion  to  dissolve  an  injunction  on  the  coming  in  of  the  answer,  the  facts  only 
as  set  forth  in  the  answer  are  to  be  considered  as  established,  not  the  opinions  or 
reasoning  of  the  partj' ;  and  therefore,  where  a  defendant  insisted  upon  a  claim  to 
a  certain  amount,  according  to  certain  proceedings  which,  of  themselves,  showed 
that  it  could  not  have  amounted  to  so  much ;  it  was  held,  that  the  facts  so  shown 
by  the  defendant  himself  could  not  be  ovciTuled  by  any  thing  he  had  alleged  as 
being,  in  his  opinion,  a  correct  conclusion  of  law  from  them. 

Where  there  is  an  agreement  to  allow  for  payments,  or  a  verdict  has  been  taken  by 
surprise  or  mistake,  it  furnishes  a  ground  for  the  interference  of  a  court  of  equit\' ; 
but  if  the  mistake  can  be  corrected  in  this  court,  a  new  trial  at  law  will  not  be 
ordered. 

Where  it  is  admitted  by  the  answer,  that  there  still  remains  a  dispute  bet^veen  the 
parties,  the  injunction  is  always  continued  until  the  final  hearing. 

Where  in  a  contract  between  A  and  B  alone,  A  stipulated  to  pay  a  sum  of  money  to 
B,  upon  condition,  that  he  made  an  assignment  of  certain  property  to  A,  and 
delivered  the  assignment  to  C,  before  a  certain  day ;  it  was  held,  that  A  was  to  be 
considered  as  the  contracting  partj',  who  alone  could  dispense  with  the  condition. 

Where  a  party  bound  himself  to  secure  the  payment  of  money,  by  giving  his  notes 
payable  so  many  days  after  date,  but  failed  to  do  so ;  it  was  kcld,  that  the  debt 
should  bear  interest  from  the  time  the  notes,  had  they  been  given,  would  have 
fallen  due. 

Interest  is  paid  for  the  use  or  forbearance  of  money ;  and  therefore,  where  a  debtor 
is  prevented  by  law  from  making  payment,  or  cannot  pay,  because  of  any  public 
calamitj',  such  as  that  of  a  public  war,  he  will  not  be  charged  with  interest. 

But  an  attachment  laid  in  his  hands,  as  a  garnishee,  does  not  prevent  him  from 
bringing  the  money  into  court  so  as  to  stop  interest ;  and  therefore,  if,  as  garnishee, 
he  contests  the  plaintitFs  claim,  either  in  his  own  right,  or  as  an  ally  of  the  defend- 
ant, he  will  be  charged  with  interest. 

If  a  creditor,  in  any  manner,  receives  only,  the  principal  of  his  debt,  so  as  not  to 
relinquish  his  claim  to  the  interest  then  due,  he  may  afterwards  recover  the  interest 
as  if  it  were  a  part  of  the  principal. 

In  some  cases,  a  partj'  may  be  relieved  from  the  consequences  of  a  fraud  which  has 
been  practised  upon  a  third  person. 

This  bill  was  filed  on  the  30th  of  December,  1818,  by  Samuel 
Chase  against  Christian  L.  Manhardt,  and  others ;  in  which  it  is 
alleged,  that  the  de f end^int  Manhardt  had  obtained  a  judgment 
against  James  Bryden  for  a  large  sum  of  money,  upon  which  he 
had  sued  out  an  attachment,  and  had  it  laid  in  the  hands  of  this 
plaintiff  Chase,  as  garnishee  of  the  defendant  Bryden  ;  upon  which 
attachment  Manhardt  had,  by  surprise  and  fraud,  obtained  a  judg- 
ment of  condemnation  against  the  plaintiff  for  an  amount  which  he 
did  not  owe  to  Bryden.  Whereupon  the  plaintiff  prayed  for  an 
injunction  to  stay  execution  upon  the  judgment,  and  for  such  relief 
as  the  nature  of  his  case  required.  After  which  the  plaintiff  filed 
an   injunction  bond,  when,  on  the    16th  of  Januar)',  1819,  an 


334  CHASE  V.  MANHARDT. 

injunction  was  granted  as  prayed.  Some  time  after  the  defendants, 
having  answered,  gave  notice  of  a  motion  to  dissolve  the  injunc- 
tion. The  particular  circumstances  of  the  case  sufficiently  appear 
in  the  opinions  delivered  by  the  Chancellors.   . 

31st  March,  1821. — Kilty,  Chancellor. — The  motion  to  dissolve 
the  injunction  in  this  case,  came  on  to  be  heard  according  to  notice, 
and  was  argued  by  counsel  for  Manhardt,  (the  said  counsel  having 
also  been  made  a  defendant ; )  and  by  the  complainant  in  proper 
person. 

On  considering  the  bill,  answers  and  exhibits,  I  am  of  opinion, 
that  the  equity  of  the  bill  is  not  denied  or  destroyed ;  and  that  the 
defendant  Manhardt  is  not  entitled  to  a  dissolution  of  this  injunc- 
tion. It  is  apparent  from  the  answer  of  Manhardt,  that  he  relies 
on  the  verdict,  or  his  statement  of  the  course  of  law  by  which  the 
sum  due  from  the  complainant  was  ascertained,  for  the  amount 
thereof;  which  amount  he  was  clearly  mistaken  in.  His  debt 
against  Bryden  was  |6664,  in  1818  ;  making,  with  the  interest, 
$9326  62.  But  Chasers  debt  to  Bryde/n  could,  at  most,  have  been 
only  $6000,  with  interest  from  1812.  And  it  was  admitted  in  the 
argument,  that  there  was  a  mistake  of  several  hundred  dollars  by 
the  jury's  finding  a  verdict  for  the  sum  due  from  Bryden,  instead 
of  the  sum  due  from  Chase  as  garnishee.  Manhardt  states  his 
information  and  belief,  that  the  verdict  and  judgment  at  law  were 
obtained  upon  a  full  and  fair  trial  upon  competent  evidence ;  and 
he  denies,  that  he  authorized  his  counsel  to  relinquish  any  part  due 
on  the  verdict. 

As  to  the  first  point,  it  appears  from  the  answer  of  J.  Purviance, 
Esq'r,  to  which  no  objection  has  been  made,  that  the  trial  was  not 
a  full  one,  nor  in  the  ordinary  course  where  a  serious  opposition  is 
intended  ;  but  that  he  permitted  a  verdict  to  be  entered  for  what  he 
supposed  to  be  the  balance  of  principal  and  interest ;  and  not 
alleging,  that  he  was  regularly  the  counsel  of  the  complainant, 
though  he  was  of  Bryden. 

And  as  to  the  second  point,  J.  Purviance  states  in  his  answer, 
that  he  was  ready  to  wait  on  D.  Hoffman,  Esq'r,  counsel  for  Man- 
hardt, to  correct  any  errors,  and  D.  Hoffman  states  his  belief,  that 
he  informed  the  complainant  the  excess,  if  any  in  the  verdict, 
would  not  be  claimed ;  which,  as  counsel  for  Manhardt,  he  had  a 
right  to  do.  And  it  appears  by  his  answer,  that  the  verdict  was 
rendered  for  the  amount  supposed  to  be  due,  to  wit,  $6654,  prin- 
cipal, with  interest  from  1808,  which  were  the  sums  due  from  Bryden 


CHASE  V.  MANHARDT.  335 

to  Manhardtj  and  not  the  sum  due  from  Chase  to  Bryden.  This  part 
of  the  answer  is  not  a  denial  of  the  equity  of  the  bill  in  that 
particular. 

It  is  true,  that  the  present  complainant  had  it  in  his  power  to 
contest  the  suit  more  fully  than  he  has  done,  and  if  he  was  con- 
cluded by  his  neglect,  there  would  be  an  end  of  the  case.  But 
wherever  there  is  an  agreement  to  allow  for  payments  or  deduc- 
tions, it  furnishes  a  ground  for  the  interference  of  a  court  of  equity. 
And  so  where  a  verdict  is  entered  by  surprise  or  mistake,  the  latter 
of  which  is  admitted  in  this  case.  And  the  Court  of  Appeals  has 
gone  much  further  in  relieving  against  the  verdict  of  a  jury,  or  the 
confession  of  judgment. 

In  noticing  the  answers  of  the  counsel  in  the  suit  at  law,  I  have  to 
observe,  that  I  am  not  satisfied  as  to  the  necessity  of  making  them 
parties  to  this  suit ;  and  if  they  w^ere  proper  parties,  they  wx're  not 
bound  to  answer  beyond  what  related  to  themselves.  But  as  to  all 
the  answers,  in  a  motion  to  dissolve  an  injunction,  the  facts  set 
forth  alone  are  to  be  considered  as  established  thereby,  and  not  the 
opinions  or  conclusions  of  law  drawn  by  the  defendants  from  the 
facts ;  much  less  the  reasoning  in  them. 

It  is  a  ground  of  equity  in  the  bill,  that  Chase  was  not  bound  to 
give  his  notes,  or  make  payment  of  the  $6000  to  Bryden^  until  the 
previous  conditions  were  complied  wdth.  The  tender  of  value,  &c. 
on  behalf  of  Bryden,  does  not  affect  this  equity,  inasmuch  as  it  w^as 
accompanied  by  a  demand  of  the  notes,  which,  after  the  attachment 
was  laid,  he  had  no  right  to  demand.  As  to  Manhardt  himself, 
(independent  of  the  verdict  irregularly  entered,)  supposing  the 
claim  to  have  been  such  as  could  be  attached,  he  had  no  right  to 
be  put  in  a  better  situation  than  Bryden,  or  to  put  Chase  in  a  w^orse 
situation  as  to  the  debt,  or  as  to  the  terms  on  which  it  w'as  to  be 
paid.  If  the  injunction  should  how  be  dissolved,  after  deducting 
the  excess  in  the  verdict,  as  proposed  by  the  counsel  for  Manhardt, 
the  complainant  might  be  left  without  remedy,  if  the  instruments 
of  writmg,  now  filed,  should  be  insuflicient ;  which  will  be  a  ques- 
tion proper  to  be  determined  on  final  hearing.  But  the  complainant 
claims  also  a  deduction  of  the  interest  charged  in  the  verdict ;  on 
which,  though  it  was  not  considered  as  the  ground  for  the  injunc- 
tion in  the  order  passed,  he  has  a  right  to  a  decision,  as  it  is  not 
admitted,  but  strongly  contested. 

This  brings  the  case  within  the  rule  laid  down  in  the  suit  by 


336  CHASE  V.  MANHARDT. 

Colegate  against  Lynch  ;{a)  that  when  a  proper  ground  for  the 
injunction  is  admitted  by  the  answer,  and  there  still  remains  a  dis- 
pute between  the  parties,  the  injunction  is  universally  continued. 
Here  the  admission  is  made  by  the  answer  of  D.  Hoffman,  read 
and  relied  on  by  himself  as  counsel  for  Manhardt,  thereby  remov- 
ing the  exception  to  it  as  evidence  against  Manhardt ;  and  the 
mis^;ake  and  overcharge  was  admitted  by  him  in  the  argument, 
which  would  be  within  the  same  reason. 

It  is  thereupon  adjudged  and  ordered,  that  the  injunction  be  and 
the  same  is  hereby  continued  till  final  hearing  or  further  order.  . 


After  this-  the  defendant  James  Bryden  died,  and  Charles  F. 
Mayer,  his  administrator,  was  on  the  1st  of  January,  1825,  admitted 
as  a  defendant  in  his  place,  on  an  application  in  the  manner  pre- 
scribed by  the  act  of  1820,  ch.  161.  After  which  the  bill  was: 
amended  by  giving  to  it  an  additional  prayer;  and  the  com- 
missions to  take  testimony  having  been  returned,  with  the  proofs 
taken,  the  case  was  by  agreement  set  down  for  hearing  and 
brought  before  the  court. 

6th  July,  1827. — Blaxd,  CJiancellor. — This  case  standing  ready 
for  hearing,  and  having  been  taken  up  at  this  time  by  consent,  the 
parties  were  fully  heard,  and  the  proceedings  read  and  considered. 

The  late  Samuel  Chase  on  the  26th  of  February,  1806,  leased 
that  property  in  the  city  of  Baltimore,  called  the  Fountain  Inn,  to 
James  Bryden,  for  the  term  of  fifteen  years  at  the  rent  of  $2000 
per  annum.  And  on  the  same  day  CJiase  gave  to  Bryden  his  bond, 
with  a  condition,  that  he.  Chase,  at  the  expiration  of  fifteen  years 
from  that  day,  and  not  before,  and  at  any  time  within  one  year 
from  the  expiration  of  that  term,  and  not  afterwards,  upon  the  pay- 
ment to  him,  by  Bryden,  of  the  sum  of  $17,500,  would  convey  in 
fee  simple  to  Bryden  that  property.  Bryden  entered  upon,  and 
held  the  property  accordingly.  On  the  11th  of  December,  1807, 
Bryden  leased  it  to  John  H.  Barney,  at  $3000  per  annum  for  ten 
years  from  the  first  of  April,  1808.  Under  this  lease  Barney 
entered  and  held  as  the  lessee  of  Bryden,  and  sub-tenant  of  Chase. 
After  which  Samuel  Chase  the  original  lossor  died  ;  and  the  present 
complainant,  and  Richard  J\I.  Chase,  it  seems,  became  the  holders 
of  all  the  estate  and  interest  in  this  property,  which  had  belonged 
to  the  late  Samuel  Chase,  but  when  or  how  does  not  appear. 

(a)  2H.  &.  J.  34. 


CHASE  V.  MANHARDT.  337 

In  this  state  of  things,  on  the  26th  of  March,  1812,  this  com- 
plainant agreed  to  give  James  Bryden  $12,000,  for  his  interest  in 
this  property,  the  half  of  which  he  then  paid  to  Bryden^  and  on  the 
same  day  stipulated  for  the  payment  of  the  other  half  in  these 
words :  "I  agree  that  on  James  Bryden'' s  delivering  to  me  of  the 
original  bond  of  my  late  father  Samuel  Chase,  dated  February 
26th,  1806,  duly  assigned  to  Richard  M,  Chase,  and  also  procuring 
Mrs.  Margaret  Mcintosh  of  New  York  to  assign  and  make  over  to 
the  said  Ricliard  M.  Chase  a  release  of  a  mortgage  given  by  the 
said  James  Bryden  to  her  late  husband  ;  and  also  giving  the  said 
Richard  M.  Chase  a  good  title  to  the  lots  and  houses  in  the  city 
of  Baltimore,  mentioned  in  the  said  bond,  and  also  on  his  assiori- 
ing  to  the  said  Richard  M.  Chase  the  original  policies  of  insur<1nce 
on  the  said  houses :  to  give  him  good  negotiable  notes  for  the  sum 
of  $6,000  payable  six  months  thereafter."  This  is  the  contract 
referred  to  in  the  bill  as  exhibit  A ;  that  referred  to  as  the  receipt 
exhibit  B,  is  not  among  the  papers ;  and,  as  it  was  not  noticed  in 
the  argument,  it  is  presumed  was  considered  wholly  unimportant. 
It  is  not  any  where  distinctly  stated  or  shown  from  what  time  Bar- 
ney was  to  be  considered  as  the  tenant  of  Chase ;  but  it  would 
seem,  that  it  was  from  the  first  of  April  1812,  as  Barney  says  he 
paid  the  whole  of  his  rent  to  the  end  of  his  lease  from  that  day  to 
the  complainant  Samuel  Chase. 

In  October,  1808,  the  State  for  the  use  of  Christian  L.  Man- 
hardty  one  of  these  defendants,  obtained  a  judgment  in  Baltimore 
County  Court,  against  James  Bryden,  for  the  sum  of  $10,035  95, 
to  be  released  on  the  payment  of  $5,018  82,  with  interest  from  the 
1st  of  October  1803,  and  costs.  Upon  this  judgment  an  attach- 
ment was  issued,  and  returned  to  March  term,  1809,  laid  in  the 
hands  of  John  H.  Barney  as  garnishee,  and  at  March  term  1811, 
the  sum  of  $1,002  40,  w^as  condemned  in  his  hands,  but  without 
costs.  This  attachment  was  renewed  and  returned  to  October 
1811,  laid  in  the  hands  of  John  H.  Barney,  as  garnishee,  and 
judgment  was  rendered  against  him  for  $494,  w^ithout  costs,  at 
March  term,  1812.  An  attachment  was  then  again  immediately 
sued  out  on  the  same  judgment ;  and,  as  it  would  seem,  some  time 
previous  to  the  17th  of  July  following,  was  laid  in  the  hands  of 
the  complainant  Samuel  Chase,  and  so  returned  to  the  ensuing  Sep- 
tember term.  This  case  was  afterwards  continued,  from  term  to 
term,  until  March  1817,  when  it  was  entered,  "  continued  to  await 
the  decision  in  a  cause  in  chancery."    And  at  the  following  Sep- 

43 


338  CHASE  V.  MANHARDT. 

tember  term,  on  the  plea  of  mil  tiel  record,  judgment  was  rendered 
for  the  plaintiff;  and  an  issue  having  been  made  up  on  the  plea  of 
nulla  bona,  there  was  a  verdict  on  it  and  judgment  rendered  for  the 
plaintiff  on  the  13th  of  October  1817,  against  the  garnishee  Chase 
for  the  sum  of  $9326  62.  Upon  which  judgment  an  appeal  was 
prayed  and  granted.  And  on  the  29th  of  June,  1818,  the  judg- 
ment was  affirmed  by  the  Court  of  Appeals. 

It  appears,  that  the  complainant  Cliaae  was  consulted  as  to  the 
nature  of  the  papers  and  documents  which  he  wished  to  obtain  by 
his  contract  of  the  26th  of  March,  1812  ; — that  they  were  prepared 
and  executed  agreeably  to  instructions  which  he  himself  gave ;  and 
after  the  attachment  had  been  laid  in  his  hands,  on  the  17th  of 
July,  1812,  they  were  tendered  to  him ;  and  offered  to  be  delivered, 
upon  his  giving  his  notes  for  $6000,  payable  in  six  months  there- 
after; which  notes  he  refused  to  give,  because  of  the  attachment 
which  had  been  laid  in  his  hands  as  garnishee  of  Bryden  ;  choos- 
ing rather  to  await  its  judicial  termination.  It  was  never  proposed 
to  deliver  the  papers  on  obtaining  judgment  on  the  attachment ;  nor 
did  Chase  ever  offer  to  give  or  suffer  judgment  on  receiving  the 
papers ;  nor  did  he  object  in  any  manner  to  the  sufficiency  of  the 
deeds,  that  had  been  tendered.  Indeed,  so  far  from  it,  on  being 
expressly  asked,  if  he  had  any  objections  to  them,  he  replied  he 
had  none. 

When  the  jury  was  sworn  to  try  the  issue  on  the  plea  of  nulla 
bona,  the  papers,  which  Bryden  had  stipulated  to  deliver,  were  pro- 
duced ;  to  show  that  he  had  complied  with  the  contract  on  his 
part;  and  that,  in  consequence  thereof,  Chase  had  become  his 
debtor  for  the  sum  of  $6000,  with  interest  thereon.  And  it  being 
believed  and  supposed,  by  the  attorneys,  David  Hoffman  and  John 
Purviance,  (for  they  alone  conducted  the  trial,)  that  the  principal 
and  interest  of  the  debt  due  from  Chase  to  Bryden  amounted  to 
$9326  62,  the  jury  were  permitted  or  directed  to  find  a  verdict  for 
that  sum;  upon  which  a  judgment  was  rendered. 

Soon  after  this  judgment  was  obtained.  Chase  comjjlained  to 
David  Hoffman,  the  attorney  for  Manhardt,  and  also  to  John  Pur- 
viance,  that  it  had  been  obtained  for  much  more  than  was  really 
due,  even  if  he  were  chargeable  with  interest ;  but  that  he  ought 
not  to  have  been,  and  could  not  lawfully  be  charged  with  interest 
at  all,  according  to  the  terms  of  his  contract.  Upon  which  those 
attorneys  both  insisted,  that  he  was  chargeable  with  interest  from 
the  date  of  the  purchase.    But  they  agreed,  that  if  it  should  appeal 


CHASE  V.  MANHARDT.  339 

on  a  calculation  and  review  of  the  proceedings,  that  he  had  been 
charged  with  too  much,  the  excess  should  be  remitted.  Indeed 
they  admitted,  that  there  was  an  excess  which  had  occurred  by 
mistake ;  which  error  should  certainly  be  corrected.  Chase  did  not 
then  assert,  that  he  owed  nothing  to  Bryden  ;  or  that,  according  to 
the  terms  of  his  contract,  he  could  not,  at  that  time,  have  been 
legally  considered  as  the  debtor  of  Bryden.  It  was  not  until  some 
time  after,  that  he  objected  to  a  judgment  having  been  rendered, 
at  that  time,  for  either  principal  or  interest,  on  the  ground,  that 
Bryden  had  failed  to  comply  with  the  contract  on  his  part. 

It  appears,  that  the  policies  of  insurance  had  been  regularly 
transferred  by  Bryden  according  to  the  terms  of  the  contract  with 
Chase,  on  the  11th  of  April,  1812  ;  and  that  the  papers  alluded  to 
in  the  contract  of  the  26th  of  March,  1812,  were  retained  by  John 
Purviance  for  some  time,  and  are  now  filed  in  this  case  as  exliibits 
referred  to  in  the  answer  of  David  Hoffman. 

These  facts  and  circumstances  have  been  collected  from  the  bill, 
answers,  exhibits  and  proofs ;  they  are  all  that  have  any  material 
bearing  upon  the  matter  now  in  controversy ;  other  particulars  will 
be  noticed  in  the  course  of  the  investigation. 

It  does  not  appear,  from  any  thing  in  these  proceedings,  what 
was  the  nature  and  extent  of  Richard  M.  Chaseh  interest  in  the 
property  called  The  Fountain  Inn ;  but  it  is  quite  certain  that  the 
contract  of  the  26th  of  ^Nlarch,  1812,  was  made  between  this  com- 
plainant Samuel  C/mse  and  Ja7nes  Bryden  only ; — that  no  other 
persons  were  immediately  parties  thereto.  The  complainant  says 
in  his  bill,  that  he  agreed  with  Bryden  to  purchase  of  him  that 
property ;  and  in  the  agreement  itself  he  says,  "  I  agree  that  on 
James  Bryden'^s  delivering  to  ?ne,"  &c.  Hence  it  is  clear,  that, 
although  the  assignment  and  releases  were  to  be  made  to  Richard 
M.  Chase,  yet  when  so  made  they  were  to  be  delivered  to  the  com- 
plainant Samuel  Chase.  And  further,  that  on  Bryden'' s  delivering 
those  papers  to  Chase  he  would  give  Bryden,  "  good  negotiable 
notes  for  the  sum  of  $6000,  payable  six  months  tliereafter.'''' 
Whence  it  is  perfectly  clear,  that  the  delivery  of  the  specified 
papers  was  that  act  to  be  done  by  Bryden,  which  was  to  bind 
Chase  to  him  unconditionally  as  his  debtor.  Consequently,  it  was 
the  contracting  party  Samuel  Chase,  alone,  who  could  insist  on  the 
performance  of  it  as  a  condition  precedent.  It  was  he  alone  who 
could  dispense  with  it  as  a  preliminary  act,  or  waive  it  altogether. 
Does  it  then  appear,  that  this  act  has  been  either  performed,  par- 


340  '  CHASE  V.  MANHARDT. 

lially  dispensed  with,  or  altogether  waived  so  as  to  make  Chase 
the  debtor  of  Bryden  ;  and  when  ? 

From  all  the  pleadings  and  proofs  it  is  clear,  that  the  complain- 
ant acquiesced  in  the  fact,  and  acted  upon  the  conviction  of  his 
having  become  legally  and  properly  the  debtor  of  Bryden  in  the 
sum  of  $6000  from  the  17th  of  July  1812,  when  the  papers  were 
tendered  to  him.  He  was  right  in  refusing  to  give  his  notes  at 
that  time,  because  of  the  attachment.  It  was  not,  however,  the 
giving  of  his  notes,  which  alone  could  fix  him  as  the  debtor  of 
Bryden ;  but  the  delivery  of  the  papers,  or  his  dispensation 
wnth  that  delivery,  either  as  a  condition  precedent  or  altogether. 
Qiase  did  not  reject  the  performance  proffered  to  him  by  Bryden  ; 
because  it  was  partial,  or  at  all  defective  in  its  nature.  On  the 
contrary,  he  expressly  said  he  had  no  objections  to  make  to  it ; 
and  rested  his  non-compliance,  on  the  pendency  of  the  attach- 
ment; and  nothing  more.  From  the  position  he  then  assumed, 
it  manifestly  appears,  that  he  waived  the  delivery  of  the  papers 
as  a  condition  precedent ;  and  relied  upon  his  contract  alone, 
considering  it  as  an  independent  agreement,  by  means  of  which 
he  might  obtain  them.  He  might  then  have  taken  the  ground, 
that  the  delivery  was  a  condition  precedent ;  or  he  might  have 
offered  to  deposit  the  money  in  court  on  those  papers  being 
delivered  to  him ;  or  he  might  have  put  that  defence  upon 
the  record  in  the  attachment  case  by  a  -special  plea,  or  in 
answer  to  the  interrogatories  propounded  to  him.  But  he 
did  not  do  so.  He  must,  therefore,  be  considered  as  the  debtor 
of  Bryden  on  the  17th  of  July,  1812,  according  to  the  terms 
of  his  contract. 

Being  perfectly  satisfied  of  these  facts,  and  that  Samuel  Chase 
did  thus  acknowledge  and  consider  himself  as  the  debtor  of  Bry- 
den on  that  day;  it  is  unnecessary  to  determine  whether  this  claim 
of  Bryden^s  was  or  was  not  such  a  debt  as  might  have  been 
attached  in  the  hands  of  C/iase  as  his  garnishee ;  since  Clmse^s 
whole  course  of  conduct  in  the  attachment  case  amounts  to  a  total 
and  absolute  waiver  of  every  objection  on  that  ground. (6) 

The  next  question  therefore  is,  whether,  according  to  the  nature 
of  the  contract  between  Bryden  and  Chase  he  was  chargeable  wnth 
interest,  and  from  wdiat  time?  It  has  been  insisted,  that  Chase. 
ought  to  be  charged  wdth  interest /royn  tJie  date  of  his  contract,  and 

(6)  Louderman  v.  Wilson,  2  H.  &  J.  379. 


CHASE  c.  MANHARDT.  34I 

to  sustain  this  position  very  great  reliance  has  been  placed  upon  a 
numerous  class  of  cases,  which  show,  that  in  equity  a  purchaser 
who  takes,  or  has  been  let  into  possession  and  receives  the  rents 
and  profits  shall  be  charged  with  interest. (c)  But  none  of  those 
cases  are  like  the  one  under  consideration.  Here  it  appears,  that 
the  lessor.  Chase,  purchased  an  outstanding  claim  from  the  lessee 
for  which  he  paid  $6000,  down  at  that  time,  and  stipulated  to  pay 
$6000  more,  six  months  after  the  delivery-  of  certain  papers  relin- 
quishing that  claim.  Shortly  after  which  time  he  was  let  into  the 
receipt  of  the  additional  rent  from  the  sub-tenant.  It  appears, 
therefore,  that  he  was  let  into  that  receipt,  by  reason  of  the  first 
payment.  And,  consequently,  the  second  payment  cannot  be 
affected  in  any  manner  whatever  by  that  change  ;  even  supposing 
it  not  to  have  been  within  the  contemplation  and  purview  of  that 
contract  by  which  it  was  stipulated  to  be  made.  Hence  this  ques- 
tion about  interest  must  rest  altogether  and  exclusively  upon  that 
contract,  and  upon  that  alone. 

By  this  contract  Ckase  was  to  give  his  negotiable  notes  payable 
six  months  after  the  delivery  of  the  papers.  All  negotiable  notes 
carry  intei'est  from  the  day  they  fall  due.  To  this  general  rule 
there  are  few  if  any  exceptions.  Had  not  the  attachment  been 
interposed,  it  is  to  be  presumed  that  this  contract  would  have  been 
fulfilled  by  each  of  the  parties  exactly,  according  to  its  terms.  If 
so,  the  papers  would  have  been  delivered  to  Chase  on  the  17th  of 
July  1812,  and  he  would  have  then  given  his  negotiable  notes 
payable  six  months  thereafter,  which  would  have  borne  interest 
when  they  fell  due,  and  not  before.  The  attachment  did  not  alter 
CJiase's  contract,  or  place  him  in  any  worse  condition,  than  he 
would  have  stood  before  ;  it  only  commanded  him  to  pay  Manhardt 
instead  of  Bryden  ;  and,  although  it  obliged  him  to  pay  all,  prin- 
cipal and  interest,  it  could  not  compel  him  to  pay  sooner,  or  to  pay 
more  than  he  stipulated  to  pay  Bryden.  It  is  an  established  prin- 
ciple, that  where  goods  are  sold  to  be  paid  for  b^-  a  bill  of  exchange, 
and  tlie  purchaser  neglects  to  give  the  bill,  the  vendor  is  entitled 
to  interest  from  the  time  the  bill  if  given  would  have  become 
due.(rf)  This  covenant  "to  give  good  negotiable  notes,"  in  effect 
then,  amounts  to  an  express  stipulation  to  pay  interest  from  the 


(c)  Sug.  Vend.  &  Pur.  354;  1  Mad.  Chan.  441.— (rf)  De  Bernales  r.  Fuller, 
2  Camp.  42S,  note;  Porter  r.  Palsgrave,  2  Camp.  472;  Boyce' r.  Warburton, 
2  Camp.  4S0. 


342  CHASE  V.  MANHARDT. 

day  they  would  have  become  due  if  they  had  been  given.  Con- 
sequently Chase  must  be  charged  with  interest  from  the  17th  of 
January  1813,  the  day  when  the  notes  would  have  become  due  had 
they  been  given  as  they  should  have  been,  when  the  papers  were 
tendered ;  and  as  it  appears  they  would  have  been,  but  for  the 
attachment ;  that  is  to  say,  from  that  day  until  the  13th  of  October 
1817,  when  the  judgment  was  rendered  in  the  attachment  case. 

It  thus  appears  sufficiently  evident,  that  confining  our  conside- 
ration to  the  contract  alone.  Chase  must  be  charged  with  interest. 
But  it  is  said,  that  the  attachment  restrained  him  from  paying  the 
debt ;  and  therefore,  he  cannot  be  burthened  with  interest  during 
the  continuance  of  that  restriction.  The  legislature  have  declared, 
that  a  debt  may  be  attached  in  the  hands  of  a  debtor  before  it  is 
due.(e)  And,  consequently,  in  such  cases,  the  plaintiff  may  obtain 
judgment  before  the  debt  becomes  due  with  a  stay  of  execu- 
tion. (/")  But  they  have  said  nothing  about  interest  on  any  debt 
that  may  be  attached.  Whether  the  laying  of  an  attachment  of 
itself  suspends  the  claim  of  interest  upon  the  debt  attached,  is  the 
question  next  to  be  investigated  and  determined. 

All  the  other  States  of  our  Union  have  adopted  a  form  of  judi- 
cial procedure  having  the  same  object  as  the  attachment  of  Mary- 
land ;  and  hence  we  may  with  as  much,  perhaps  more,  propriety 
deduce  illustrations  and  principles  from  their  adjudications  upon 
this  subject  than  from  those  of  England.  In  every  instance,  how- 
ever, it  is  conceived  that  such  adjudications,  whether  American  or 
English,  must  be  received  with  caution ;  because  of  the  dissimi- 
larity of  the  judicial  forms,  and  the  differences  in  many  particulars 
of  the  code  upon  which  they  are  predicated. 

A  decision  of  the  Supreme  Court  of  Pennsylvania  has  been 
much  relied  on,  in  which  it  is  laid  down  as  a  general  rule,  in  that 
State,  that  a  garnishee  is  not  liable  for  interest  while  he  is  restrained 
from  the  payment  of  his  debt  by  the  legal  operation  of  a  foreign 
attachment,  (o-)  This  same  tribunal  has  furnished  us  with  an  expo- 
sition of  the  reason  of  this  rule.  Where  the  creditor,  (it  is  said,) 
cannot  enforce  payment,  nor  the  debtor  pay  consistently  with  the 
law,  or  without  disobeying  its  positive  and  unqualified  injunctions, 
as  by  going  into  an  enemy's  country  to  make  payment,  the  debt 
shall  not  carry  interest ;  because  interest  is  paid  for  the  use  ox  for- 


(e)  1795,  ch.  56,  s.  6.— (/)  Com.  Dig.  tit.  Attachment,  G.—{g)  Fitzgerald  v. 
Caldwell,  2  Dall.  215. 


CHASE  V.  MANHARDT.  343 

bearance  of  money.  Therefore,  where  a  person  is  prevented  by- 
law, as  in  that  instance,  during  the  revolutionary  war,  from  paying 
the  principal,  he  shall  not  be  compelled  to  pay  interest  during  the 
continuance  of  the  prohibition.  And  upon  this  analogy  and  these 
reasons,  it  is  said,  that  the  garnishee  shall  not  be  compelled 
to  pay  interest  pending  the  attachment  ;(A) — unless  he  has  been 
guilty  of  fraud  or  collusion,  or  has  himself  occasioned  some 
unreasonable  delay ;  which  is  in  no  case  to  be  presumed,  but  must 
be  proved.(t) 

Nothing  can  appear  to  be  more  just  and  equitable  than,  that 
when  a  debtor  is  positively  prohibited  from  papng  his  creditor,  or 
is  prevented  from  doing  so  by  the  overruling  calamity  of  war,  he 
ought  not  to  pay  interest.  Because  in  such  case  he  is  compelled 
against  his  will  to  become  the  holder  or  bailee  of  the  money,  at  his 
own  risk ;  and  that  too  perhaps  at  a  time  and  under  circumstances 
w^hen  it  may  be  very  unsafe  to  use  it,  or  utterly  impossible  to 
derive  any  benefit  from  the  use  of  it.  So  far  the  reason  is  satis- 
factory, and  applies  as  forcibly  here  as  any  where  else.(  j) 

But  in  this  State  a  garnishee,  in  an  attachment  case,  is  not  thus 
absolutely  tied  up  and  restricted.  He  is  not  bound  to  hold  the 
money  at  his  own  risk  and  against  his  consent,  or  longer  than  he 
chooses,  (/v)  Now"  it  is  upon  this  very  principle,  of  the  existence 
of  such  a  positive  restriction,  that  the  rule  of  the  Pennsylvania 
law  is  based.  It  is,  that  the  restriction  imposed  by  attachment 
is  altogether  analogous  to  that  prohibition  imposed  by  a  posi- 
tive law,  or  a  public  war.  This  may  be  so  there,  but  here  it  is 
otherwise. 

I  take  it  to  be  the  established  law  of  this  State,  that  the  defend- 
ant, in  all  actions  founded  on  contract  for  the  recovery  of  a  debt, 
may  have  leave  as  a  matter  of  course  to  bring  the  sum  sued  for 
into  court;  and  thus  put  a  stop  to  the  further  accumulation  of 
interest  and  costs,  at  least  for  so  much  as  he  brings  in.(/)  In  those 
cases  where  the  debt  carries  interest  according  to  law,  the  mere 
bringing  of  an  action  for  the  recovery  of  it  does  not  suspend  the 
accumulation  of  interest  for  a  single  moment.  Because  it  is  the 
duty  of  the  debtor  to  seek  his  creditor  and  make  payment ;  and  if 
he  fails  to  do  so  he  is  liable  to  be  sued,  and  is  chargeable  with 


(h)  Hoare  v.  Allen,  2  Ball.  102.— (i)  Fitzgerald  r.  Caldwell,  2  Ball.  215.— (y)  Bu- 
lany  v.  Wells,  3  H.  &  McH.  23 ;  Court  v.  Vanbibber,  3  H.  &  McH.  144 ;  Bordley  v. 
Eden,  3  H.  &  McH.  167.— (A)  Ross  v.  Austin,  4  Hen.  &  Mun.  502.— (Z)  Tidd, 
Prac.  561. 


344  CHASE  V.  MANHARDT. 

interest  on  the  ground  of  his  neglect.  But  if,  being  sued,  he  con- 
tests the  claim,  then  he  is  chargeable  on  the  stronger  ground  of  his 
wilful  opposition  and  denial  of  justice. 

It  is  difficult  to  conceive  what  pretension  a  garnishee  can  have 
to  stand  in  a  better  predicament  than  a  defendant  debtor.  He  is 
cited  as  a  debtor ;  and  is  called  into  court  certainly  in  that  charac- 
ter, although  not  by  tliat  name  and  in  that  form.  It  is  often  said, 
that  the  object  of  our  "  attachment  acts  and  practice,"  is  to  enforce 
an  appearance.  It  may  with  as  much  propriety  be  said,  that  their 
intention  is  to  compel  a  plea  or  any  entry  upon  the  docket.  Their 
true  and  only  object  is  to  citable  a  creditor  to  obtain  satisfaction 
out  of  any  property  found  in  this  State  belonging  to  his  absent  or 
absconding  debtor ;  and  for  that  purpose  they  have  provided  "  a 
special  auxiliary  remedy  for  the  recovery  of  debts  :"(to)  some- 
thing analogous  to  which  will  be  found  to  exist  in  every  code 
whatever.(7i)  Hence  it  is  evident,,  upon  general  principles,  that 
a  garnishee  stands  in  all  respects  in  a  situation  exactly  similar  to 
that  of  a  defendant  debtor;  having  the  same  rights  and  subject  to 
the  same  liabilities.  He  may  have  leave,  at  any  time,  to  bring  the 
debt  into  court ;  and  he  is  chargeable  with  interest  from  the  time  it 
becomes  due  until  it  is  paid. 

The  positive  provisions  of  our  attachment  act,(o)  looks  to  and 
evidently  sanctions  this  right  or  duty  of  the  garnishee  to  bring  the 
sum  attached  into  court  for  the  purpose  of  relieving  himself  from 
further  responsibility  and  trouble.  He  may  contest  the  claim  made 
against  him ;  but,  if  he  does  so,  the  act  declares  he  shall  be  liable 
to  costs  ; — whence  it  clearly  follows,  that  by  assuming  the  position 
of  a  litigating  debtor  he  would,  as  in  all  other  similar  cases,  be 
also  chargeable  with  interest  upon  the  debt.  A  garnishee  may  not 
only  defend  his  own  interests,  as  a  mere  neutral  in  the  controversy 
between  the  plaintiff  and  defendant ;  but  he  may  also  assume  upon 
himself  the  character  of  an  ally  of  the  defendant.  He  is  allowed 
to  plead  and  defend  his  rights  for  him,  and  in  his  behalf  (p)  But 
if  he  thus  contests  the  plaintifTs  right  to  recover  either  as  principal 
or  ally  in  the  controversy,  the  genius  of  our  law,  as  well  as  the 
reason  and  justice  of  the  case  seem  most  strongly  to  require,  that 


(m)  Burk  v.  McClain,  1  H.  &,  McH.  236 ;  Campbell  v.  Morris,  3  H.  &  McH.  535  ; 
Davidson's  Lessee  v.  Beatty,  3  H.  &  McH.  594 ;  Shivers  v.  Wilson,  5  H.  &.  J.  130. 
(n)  Rex  V.  Wilkes,  4  Burr.  2549  ;  Manro  v.  Almeida,  10  Wheat.  473  ;  2  Bro.  Civil 
Law,  333.-  (o)  1715,  ch.  40,  s.  4.— Q?)  1795,  ch.  56,  s.  4 ;  Wilson  v.  Starr,  1  H.  & 
J.  491. 


CHASE  V.  MANHAEDT.  345 

he  should  be  held  answerable  for  the  delay,  and  be  charged  with 
interests  and  costs. 

In  this  case  Chase  pleaded,  or  suffered  to  be  pleaded  nul  tiel 
record,  and  nulla  bona.  He  thus  opposed  the  plaintiff's  right  to 
recover  as  principal  and  as  ally  in  the  controversy.  He  assumed 
the  hostile  attitude  and  position  of  a  litigating  debtor  in  every  point 
of  view.  He  comes  now,  therefore,  with  an  ill  grace  into  a  court 
of  equity  to  ask  to  be  exempted  from  bearing  the  burthen  of  that 
loss  which  was  the  necessary  and  inevitable  consequence  of  the 
position  he  had  assumed.  This  same  creditor  had,  just  previously, 
to  obtain  satisfaction  of  this  same  debt,  made  a  similar  demand  by 
attachment  upon  John  H.  Barney,  who  brought  his  debt  into  court 
and  was  thereupon  dismissed  mi/wu^  costs.  Chase  should  have 
profited  by  the  example. 

But,  it  is  said,  that  the  attachment  placed  Chase  in  the  condition 
of  a  mere  stake-holder ;  and  that  a  stake-holder  is  never  charged 
with  interest.  Such,  however,  is  not  the  case  here,  in  point  of 
fact.  These  parties  have  not  consented,  that  Cliase  should  stand 
here  between  them,  and  keep  this  money  as  a  mere  stake-holder ; 
nor  has  the  attaching  creditor  forced  him  to  assume  and  continue 
in  that  position.  Because,  the  court  of  justice,  before  which  he 
was  cited,  was  open  and  ready  to  relieve  him  from  that  situation, 
whenever  he  thought  proper  to  ask  its  protection.  If  without 
having  had  the  money  attached  in  his  hands,  it  had  been  demanded 
of  him  by  two  or  more  persons,  each  of  whom  claimed  a  right 
thereto  in  opposition  to  the  other,  he  might  have  filed  his  bill  of 
interpleader,  and  been  relieved  from  the  risk  of  paying  it  to  either. 
But  he  could  only  ask  for  such  relief  on  bringing  the  money  into 
court ;  for  equity  will  in  no  case  even  listen  to  any  such  cause  of 
complaint,  so  long  as  the  party  holds  the  money  in  his  own  hands,  (g-.) 

Upon  the  whole  then,  it  appears,  that  the  rule  laid  down  by  the 
highest  judicial  authority  of  Pennsylvania  upon  this  subject,  is 
founded  upon  principles  which  have  no  existence  in  this  State  ; 
and  that  the  reasons  of  it  are  at  variance  Avith  many  of  the  well 
established  principles  of  our  law.  Consequently,  however  just 
and  beneficial  the  rule  may  be  there,  it  cannot  be  considered  as 
deserving  the  least  regard  in  this  State. 

The  case  of  Quynn  v.  West,{r)  decided  by  the  late   General 


(q)  1  Mad.  Chan.  174  ;  Spring  v.  S.  C.  Ins.  Company,  S  Wheat.  26S.— (>)  3  H.  & 
McH.  124. 

44 


346  CHASE  V.  MANHARDT. 

Court  of  this  State,  it  has  been  strongly  urged  sustains  the  posi- 
tion, that  an  attachment  does  not  of  itself  in  all  cases  stop  the 
accumulation  of  interest  during  its  pendency.  On  the  other  hand, 
it  is  contended,  that  this  case  as  reported  is  obscure,  contradictory, 
absurd,  and  cannot  be  law.     Let  us  examine  it. 

The  case  is  this. — Rutland,  in  October  1786,  obtained  a  judg- 
ment against  West,  which  "  was  to  be  released  on  payment  of 
je849  9s.  8d.,  with  interest  from  the  Zlst  of  October  1786  till  paid, 
and  costs.  Mason  having  obtained  a  judgment  against  Rutland, 
for  <£3234 ;  on  the  4th  of  August  1786,  issued  an  attachment  on 
his  judgment  which  he  laid  in  the  hands  of  West  on  the  said  debt 
so  by  him  due  to  Rutland ;  and  on  the  second  Tuesday  of  Octo- 
ber 1788,  Mason  obtained  a  condemnation  in  the  hands  of  West, 
of  no  more  than  the  principal  and  costs  mentioned  in  Rutland's 
judgment,  leaving  the  interest  thereon,  from  the  31st  of  October 
1786  to  the  day  of  the  condemnation,  untouched.  Upon  this  state 
of  things  the  only  question  was  whether  Rutland  could  recover  the 
whole  interest  during  that  time  ;  a  part  of  which  had  accrued  pend- 
ing the  attachment.  Upon  which  the  court  gave  judgment  for  the 
plaintiff. 

Now  it  is  said  here  is  an  apparent  absurdity ; — because  Mason's 
claim  was  large  enough  to  cover  the  whole  of  Rutland's  judgment 
including  principal,  interest,  and  costs ;  and  yet  Mason  had  only 
the  principal  and  costs  condemned,  leaving  the  interest ;  that  such 
a  partial  condemnation  could  not  have  been,  because  the  law  would 
not  allow  it.  But  there  may  be  an  attachment  for  part  of  a  debt, 
which  may  be  pleaded  in  bar  pro  tanto.{s)  Why  Mason  attached 
only  a  part  of  this  debt  due  upon  Rutland's  judgment  does  not 
appear ;  but  he  might,  and  it  appears  did  do  so,  and  obtained  a 
condemnation  for  the  principal  and  costs  only.  And,  consequently, 
the  court  appears  to  have  correctly  decided,  that  the  attachment 
was  a  bar  only  pro  tanto,  to  the  amount  covered  by  the  condem- 
nation, and  no  more. 

It  has  been  also  urged,  that  after  the  recovery  or  payment  of  the 
principal,  a  creditor  cannot  sue  for  and  recover  the  interest.  But 
if  a  creditor  receives  or  recovers  his  principal  debt  in  any  manner 
so  as  not  thereby  either  expressly  or  tacitly  to  relinquish  his  claim 
to  the  interest  then  due,  he  may  as  rightfully  sue  for  and  recover 
the  interest  then  due,  as  if  it  were  so  much  of  the  principal  debt 

(s)  Com.  Dig.  tit.  Attachment,  G.  ^  H. 


CHASE  V.  MANHARDT.  347 

itself  which  he  had  suffered  to  remain  in  his  debtor's  hands ;  for 
there  is  no  more  reason  why  the  interest  should  not  be  recovered 
after  the  debt  had  been  paid  in  a  manner  not  to  imply  an  abandon- 
ment of  the  interest ;  thap  that  a  party  should  not  recover  the 
mesne  profits  of  land  after  he  had  obtained  possession  by  means 
of  an  action  of  ejectment. (^) 

Upon  the  whole  then,  although  it  may  be  admitted,  that  this 
case  of  Quynn  v.  West  has  not  been  so  fully  and  perspicuously 
reported  as  it  might  have  been ;  yet  there  is  no  just  ground  to 
charge  it  with  absurdity,  or  to  impeach  the  correctness  of  its  prin- 
ciples in  any  way.  By  this  decision  it  does  most  clearly  appear  to 
have  been  held,  that  Mason's  attachment  did  not  prevent  the  accu- 
mulation of  interest  upon  i?i^^Za7irf's  judgment  during  its  pendency. 
There  are  no  reasons  given  for  this  or  any  other  of  the  positions, 
which  are  necessarily  involved  in  the  judgment  the  court  pro- 
nounced. 

But  as  to  the  reason  and  propriety  of  a  debt's  carrying  interest 
during  the  pendency  of  an  attachment,  I  entirely  concur  with  what 
has  been  said  by  the  Court  of  Appeals  of  Virginia.  "  In  all  such 
cases,"  it  is  said,  "  the  safe  and  sound  doctrine  is,  that  if  the 
party,  though  restrained  from  paying,  holds  and  uses  the  money, 
(and  we  must  presume  he  uses,  if  he  continues  to  hold  it,)  he 
ought  to  pay  interest ;  because  the  owner  of  the  debt  has  a  right  to 
the  interest ;  because  money  is  worth  its  interest ;  and  if  the  holder 
does  not  think  so,  he  has  always  the  privilege  of  bringing  the 
money  into  court;  and  because,  if  the  debtor  could  under  this 
restraining  process,  hold  the  debt  for  years,  without  interest,  it 
would  offer  a  strong  temptation  to  him,  to  stir  up  claims  of  this 
kind,  and  to  throw  all  possible  obstacles  in  the  way  of  a  decision 
of  the  questions  raised. "(?i) 

I  am,  therefore,  satisfied  as  well  by  reason  and  analogy,  as  by 
direct  authority,  that  an  attachment  has  not  the  effect  and  operation 
of  suspending  any  claim  for  interest,  which  exists  independently  of 
that  judicial  proceeding ;  and,  consequently,  that  in  this  case  Chase 
is  properly  chargeable  with  interest  by  virtue  of  his  contract. 

It  has  been  urged,  that  Manhardt  obtained  a  judgment  against 
Brydcn  for  more  than  he  was  entitled  to.     The  court  has  not  been 

(/)  Creuze  v.  Hunter,  2  Ves.  jun.  162 ;  Snowden  v.  Thomas,  4  H.  &  J.  337  ;  Dixon 
V.  Parkes,  1  Esp.  Rep.  110;  TilJotson  v.  Preston,  3  John.  Rep.  229;  Johnston  v. 
Brannan,  5  John.  Rep.  2CS. — (w)  Templeman  v.  Fauntleroy,  3  Rand.  447;  Tazewell 
V.  Barrett,  4  Heu.  &  Mun.  259  ;  Hunter  v.  Spotswood,  1  AVash.  145. 


348  CHASE  V.  MANHARDT. 

furnishecl  with  sufficient  data  to  test  the  correctness  of  that  judg- 
ment, even  if  it  were  now  open  to  investigation.  But  it  is  stated 
in  Manhardfs  answer,  and  was  not  denied  by  Bryden,  who  w'as 
fully  and  actively  represented,  when  the  judgment  of  condemnation 
was  obtained  in  the  attachment  case ;  nor  is  it  now  denied  by 
Brydeii's  representative,  who  is  a  party  to  this  suit,  that  Manhardfs 
judgment  against  Bryden  amounted  at  that  time  to  $9326  62. 
This  matter  must  therefore  be  now  considered  as  finally  and  con- 
clusively settled.  Manhardt^s  judgment  against  Bryden  cannot 
now  be  questioned  in  any  way ;  particularly  by  this  complainant 
as  garnishee  ;  and  in  whose  present  bill  there  is  no  allegation  which 
involves  its  validity  and  correctness.  I  therefore  lay  aside  every 
thing  that  has  been  said  upon  that  subject. 

There  can  be  no  doubt,  that  this  court  may  set  aside  a  verdict 
that  has  been  obtained  by  surprise  oV  fraud,  and  grant  a  new  trial. 
But,  has  there  been  any  surprise  or  fraud  in  this  case?  By  the 
docket  it  appears,  that  there  was  an  appearance  entered  for  the 
garnishee  ;  and,  that  two  attorneys  were  noted  in  the  usual  manner 
as  appearing  in  the  defensive.  It  is  certain,  that  one  of  them, 
John  Purviance,  had  his  name  thus  entered  for  the  purpose  of 
protecting  the  interests  of  Bryden,  the  defendant,  and  of  Kyd,  who 
were  his  clients.  It  is  also  certain,  that  he  put  in  the  pleas  of  mil 
fiel  record,  in  defence  of  Bryden,  and  nulla  bona  in  behalf  of  the 
complainant  Chase  ;  and,  that  he  had  full,  free  and  frequent  con- 
versations with  Chase,  the  complainant,  respecting  the  attachment 
while  it  was  depending ;  who  never  once,  in  all  that  time,  told 
him,  that  he.  Chase,  had  any  just  grounds  of  defence  for  himself 
against  the  claim  founded  on  his  contract  with  Bryden.  It  is  not 
distinctly  shown  for  whom  Lulh-er  Martin,  the  other  attorney, 
appeared.  But  it  is  clear,  that  they  w^ere  both  willing,  and  either 
of  them  might  have  made  for  Chase  any  defence  he  might  have 
instructed  them  to  make.  Indeed  it  appears,  that  interrogatories 
were  propounded  to  him,  as  garnishee,  which  he  answered; — and, 
consequently,  that  he  not  only  had  an  opportunity  to  defend  his 
interests  in  that  cause,  but  was  actually  invited  to  spread  his 
defence  upon  the  record.  Those  interrogatories  and  answers  are 
lost.  The  exceptions  to  the  answers  are,  however,  here ;  and 
among  other  things  they  say,  that  Chase  did  not  file  the  original 
papers;  and,  that  it  did  not  appear  with  sufficient  certainty, 
whether  the  balance  of  the  purchase  money  due  to  Bryden  was  due 
from  him,  {Samuel  Chase,)    or  from  the  said  Richard  M.  CJiase. 


^  CHASE  V.  MANHARDT.  349 

Hence  it  is  very  evident,  that  neither  the  original,  nor  a  copy  of 
his  contract  of  the  26th  March,  1812,  could  have  been  filed  with 
his  answers  ;  and,  that  he  certainly  did  not  in  those  answers  state, 
as  a  ground  of  defence,  that  he  could  not  then  be  considered  as  the 
debtor  of  Brydcn,  according  to  the  terms  of  that  contract ;  because 
it  had  not  then  been  performed  by  Bryden  on  his  part. 

The  continuance  at  March,  1817,  "  to  await  the  decision  in  a 
cause  in  chancery,"  alluded  to  a  suit  which  had  been  instituted 
by  Manhardt  against  Bryden  and  others,  and  is  still  depending  in 
this  court,  to  obtain  an  injunction  to  prevent  Chase  from  paying  or 
giving  his  notes  to  Bryden  for  the  sum  of  $6000,  which  had  been 
attached  in  his  hands  ;  and  also  to  obtain  certain  disclosures  in  aid 
of  the  attachment  suit.  But  it  does  not  appear,  nor  is  it  alleged, 
that  it  was  founded  on  any  special  understanding  or  agreement 
with  this  complainant,  or  that  he  was,  in  any  respect,  misled  by 
any  confidence  he  placed  in  that  entry  as  a  continuing  and  binding 
agreement.  On  the  contrary,  he  says,  "  that  he  relied  upon  the 
said:  a:ttachment's  being  continued  as  the  said  injunction  was  then 
depending."  But  he  does  not  allege,  nor  does  it  in  any  way  appear, 
that  the  continuance  of  the  injunction  involved,  or  embarrassed,  or 
withheld  from  him  any  defence  he  might  have  made  as  garnishee 
in  the  attachment  case,  or  that  in  consequence  thereof  he  did  not 
make  any  defence  which  he  otherwise  would  have  made.  The  fact 
is,  that  the  injunction  from  this  court,  and  the  attachment  at  law, 
both  operated  upon  Chase,  the  garnishee,  in  precisely  the  same 
way  ;  the  object  of  both  was  to  prevent  him  from  paying  what  he 
owed,  to  Bryden  himself,  and  to  have  it  paid  into  other  hands. 
There  is  nothing  which  shows,  that  Chase  was  taken  by  surprise 
by  any  movement  in  either  of  those  cases,  or  by  proceeding  in 
either  pending  the  other. 

Much  has  been  said  about  the  fraudulent  and  collusive  conduct 
of  Manhardt,  Bryden,  and  Kyd.  But  it  is  not  in  any  manner  shewn 
how  any  of  their  alleged  frauds  or  misrepresentations  could  or  did 
affect  the  complainant  Chase.  It  is  admitted,  that  Bryden  was 
indebted  to  Manhardt ;  and,  that  Chase  was  indebted  to  Bryden. 
Now,  as  the  conduct  of  those  persons  did  not  in  any  way  affect 
Chase,  or  charge  him  with  more  than  he  really  owed  Bryden,  or 
enable  Manhardt  to  recover  more  than  he  might  lawfully  claim  of 
Cliase  as  the  creditor  of  Bryden, — it  is  exceedingly  difficult  to 
conceive  how  there  could  exist  any  fraud  of  which  Chase  could 


350  CHASE  V.  MANHARDT. 

have  any  just  cause  of  complaint.  Admitting  every  thing  that  has 
been  said  upon  this  subject  to  be  true,  it  amounts  to  no  more  than 
this : — that  Kyd  and  Bryden  were  disposed,  if  possible,  to  prevent 
Manhardt  from  having  Chase's  debt  applied  in  satisfaction  of  his 
claim,  on  the  ground,  that  it  was  not  liable  to  be  so  applied,  or 
that  Kyd  had  obtained  a  prior  assignment  or  lien  upon  it,  and  that 
Manhardt  compromised  matters  with  them  in  order  to  enable  him, 
without  further  delay,  to  obtain  some  satisfaction  by  means  of  the 
attachment  laid  in  the  hands  of  Chase.  It  is  true,  that  equity  will 
in  some  cases  relieve  a  party  from  the  consequences  of  a  fraud, 
which  has  been  practised  upon  a  third  person.  As,  if  the  fraud 
practised  upon  Manhardt  alone  had  by  any  consequence  or  recoil 
injuriously  rested  upon  the  interests  of  Chase,  he  might  have  asked 
and  obtained  relief  from  this  court,  (v)  But  in  this  case,  the  squib 
aimed  at  Manhardt  did  not  reach,  or  at  all  affect  Chase ;  he, 
therefore,  can  have  no  cause  of  complaint  whatever  upon  that 
ground. 

In  fine  I  am  perfectly  satisfied,  that  Manhardfs  judgment  against 
Bryden  cannot  now  be  impeached  in  any  way ;  that  in  obtaining 
the  verdict  in  the  attachment  case,  Chase  was  not  taken  by  surprise ; 
and,  that  there  has  been  no  fraud  practised  upon  hina.  But  that 
there  was  a  mistake  in  the  judgment  of  condemnation  obtained 
against  him  is  absolutely  certain.  Indeed  it  is  admitted,  that  to 
some  extent  a  mistake  had  been  made,  which  it  was  agreed  should 
be  corrected.  The  nature  and  extent  of  that  mistake  is  now 
perfectly  ascertained  in  the  manner  and  upon  the  principles  I  have 
explained.  Chase  w^as  accidentally  and  erroneously  represented  as 
being  indebted  to  Bryden  to  the  full  amount  of  Manhardt'' s  judg- 
ment against  Bryden,  when  in  truth  the  fact  was  not  so.  This 
mistake  must,  therefore,  be  now  corrected  as  was  agreed.  The 
staying  of  proceedings  at  law,  upon  the  ground  that  judgment  had 
been  by  mistake  obtained  for  more  than  was  really  due,  is  quite 
a  common  case, — one  which  is  often  presented  to  this  court. 
In  such  cases  the  verdict  is  never  disturbed ;  or  a  new  trial 
ordered. 

Charging  Chase  with  interest  from  the  17th  of  January,  1813, 
when  the  debt  became  due,  to  the  13th  of  October,  1817,  when 
the  judgment  of  condemnation  was  rendered,  it  appears  that  the 

{v)  Clifford  V.  Brooke,  13  Ves.  132  ;  Chesterfield  v.  Janssen,  2  Ves.  156 ;  Garretson 
V.  Cole,  1  H.  &  J.  374. 


CHASE  V.  MANHARDT.  35I 

whole  amount  then  due  from  him  to  Bryden  was  $7706,  and  no 
more,  leaving  an  excess  of  $1620  62.  For  the  one  amount,  the 
judgment  will  be  suffered  to  stand ; — for  the  other,  all  further 
proceedings  will  be  perpetually  enjoined. 

The  bill  prays,  that  the  papers  stipulated  for  by  the  contract 
of  the  26th  of  March,  1812,  may  be  now  delivered  to  the  com- 
plainant. 

They  have  been  brought  in  as  exhibits  referred  to  in  the  answer 
of  the  defendant  David  Hoffman;  no  objection  has  been  made  to 
their  sufficiency;  I  shall,  therefore,  order  them  to  be  delivered 
accordingly.  The  defendants  Purviance  and  Hoffman  having  been 
improperly  and  unnecessarily  made  parties,  I  shall  dismiss  the  bill 
altogether  as  to  them. 

Whereupon  it  is  Decreed,  that  the  judgment  of  condemnation,  in 
the  proceedings  mentioned,  obtained  by  Christian  L.  Manhardt 
against  the  complainant  Samuel  Chase,  as  garnishee  of  James 
Bryden,  is  hereby  permitted  to  remain  in  full  force  and  effect  in  all 
respects  whatever  to  the  amount  of  $7706 ;  and,  as  to  that  amount 
the  injunction  heretofore  granted  is  hereby  dissolved ; — That  as  to 
the  sum  of  $1620  62,  the  residue  of  the  judgment,  the  injunction 
is  hereby  made  perpetual ; — That  the  register  make  out  and  file  in 
this  case  correct  copies  of  all  the  original  deeds  referred  to  in  the 
answer  of  the  defendant  David  Hoffman ;  and  deliver  the  original 
deeds  unto  the  complainant  at  any  time  he  may  demand  the  same, 
as  the  deeds  specified  and  required  to  be  delivered  to  him  by  his 
said  contract,  in  the  proceedings  mentioned,  bearing  date  on  the 
26th  of  March,  1812 ; — And  that  the  complainant's  bill  of  com- 
plaint as  to  the  defendants  John  Purviance  and  David  Hoffman,  is 
hereby  dismissed  with  costs  ; — And  that  the  other  defendants  pay 
unto  the  complainant  his  full  costs  as  against  them  to  be  taxed  by 
the  register. 


352  GIBSON  V.  TILTON. 


GIBSON  V.  TILTON. 

On  a  motion  to  dissolve  an  injunction,  objections  of  every  kind  to  the  answer  may 
be  made,  and  are  then  in  order  ;  and  it  is  a  general  rule,  that  if  the  facts  on  which 
the  equity  of  the  injunction  rests  are  denied,  the  injunction  must  be  dissolved ; 
otherwise  it  must  be  continued  to  the  final  hearing. 

An  atfidavit  made  in  another  State  to  an  answer  to  a  bill  in  this  court,  being  an 
authentication  called  for  by  a  tribunal  here,  is  a  part  of  the  judicial  proceedings 
of  this  State ;  and  is  not  such  a  judicial  proceeding,  of  another  State,  as  comes 
within  the  provision  of  the  Constitution  of  the  United  States,  and  the  acts  of  Con- 
gTess  respecting  the  manner  in  which  such  proceedings  shall  be  proved. 

The  sending  of  commissioners  to  other  States  to  have  testimony  there  taken  ;  and, 
the  having  of  answers  in  chancery,  and  the  like,  authenticated  there,  by  affidavit  or 
otherwise,  has  long  been  considered  as  one  of  the  most  common  instances  of  the 
interchange  of  courtesies  among  the  nations  of  Europe  ;  and  is  a  kind  of  comity 
which  should  be  liberally  extended  among  the  States  of  this  Union. 

Although  a  person,  who  so  testifies,  or  makes  an  affidavit  abroad,  cannot  be  proceeded 
against  criminally  here  ;  yet  a  party  here,  who  should  knowingly  use  such  spurious 
evidence,  might  be  punished  here  for  practising  an  imposition  upon  the  court. 

This  bill  was  filed  on  the  2d  of  September,  1826,  by  Fayette 
Gibson  against  James  Tilton,  in  which  it  is  alleged,  that  owing  to 
various  circumstances,  the  defendant  Tilt  on  had  recovered  a  judg- 
ment at  law  against  the  plaintiff  Gibson^  for  a  large  sum  of  money 
which  he  had  discovered  was  really  and  in  equity  not  due  to  him. 
Whereupon  it  was  prayed  that  an  injunction  might  be  granted  to 
stay  execution,  and  for  general  relief,  &c.  An  injunction  was 
ordered  as  prayed ; — after  which  the  defendant  put  in  his  answer, 
and  gave  notice  of  a  motion  to  dissolve  the  injunction. 

23rf  July^  1827. — Bland,  Chancellor. — This  motion  for  a  dis- 
solution of  the  injunction  standing  ready  for  hearing,  and  the 
solicitors  of  the  parties  having  been  fully  heard,  the  proceedings 
were  read  and  considered. 

It  appears,  that  the  defendant  is  a  resident  of  the  State  of  Dela- 
ware, where,  after  subscribing  his  name  to  his  answer,  he  swore  to 
its  truth,  which  acts  are  certified  by  the  judge  in  these  words : — 
"  Sworn  and  subscribed  this  twenty-sixth  day  of  April,  A.  D. 
1827,  before  Kensey  Johns,  Chief  Justice  of  the  Supreme  Court  of 
the  State  of  Delaware."  To  which  is  subjoined  a  certificate,  in 
the  usual  form,  by  the  clerk  of  New- Castle  ^unty,  in  the  State 
of  Delaware,  that  Kensey  Johns  was  then  Chief  Justice. 

It  was  objected,  that  the  answer  was  insufficient ;  was  not 
properly  sworn  to ;  and  that  the  certificate  was  not  in  the  form 
prescribed  by  the  act  of  Congress  of  the  26th  of  May,  1790,  ch.  11, 


GIBSON  V.  TILTON.  353 

prescribing  the  mode  of  authenticating  records  and  judicial  pro- 
ceedings from  the  other  States  of  the  Union.  In  answer  to  which 
it  was  urged  that  the  answer  was  entirely  sufficient,  and  that  the 
latter  objections  could  not  now  be  made. 

On  the  hearing  of  a  motion  to  dissolve  an  injunction,  objections 
of  every  kind  to  the  answer  may  be  made,  and  are  then  in  order. 
Because,  the  motion  itself,  in  its  very  nature,  is  founded  upon  the 
correctness,  and  sufficiency  of  the  answer  in  every  particular.  Hence 
the  plaintiff  may,  on  the  very  day  of  hearing  the  motion,  file  excep- 
tions to  the  answer,  and  have  them  then  heard  and  decided 
upon.  The  defendant  can  have  no  cause  to  complain  of  sur- 
prise ;  because,  by  his  motion  he  calls  upon  the  plaintiff  to  show 
cause  why,  after  having  well  and  sufficiently  answered  the  bill,  the 
injunction  should  not  be  dissolved.  And,  having  thus  planted 
himself  upon  the  sufficiency  of  his  answer,  at  that  time,  and  for 
that  purpose,  he  stands  pledged  to  sustain  it  in  all  respects  ;  or  he 
must  fail  in  his  motion. (a)  All  the  objections  that  have  been 
made  are,  therefore,  now  in  season  and  must  be  decided  upon. 

The  act,  relied  upon  to  show  the  insufficiency  of  the  certificate, 
is  one  of  those  laws  passed  by  Congress  in  pursuance  of  the  power 
f  delegated  to  them,  by  the  first  section  of  the  fourth  article  of  the 
Constitution  of  the  United  States.  That  delegation  of  power 
enables  Congress  to  prescribe  the  manner  in  which  the  public  acts, 
the  records  and  the  judicial  proceedings  of  every  other  State  shall 
be  proved,  and  the  effect  thereof,  in  this  State.  But,  the  affidavit, 
and  certificate  appended  to  this  answer  are  not  in  any  sense  public 
acts,  records,  or  judicial  proceedings  of  Delaware.  They  are  parts 
of  a  judicial  proceeding  of  Maryland;  such  as  have  been  called 
for,  and  authorized  by  the  usage  and  law  of  Maryland,  not  of 
Delaware. 

According  to  the  long  established  practice  of  this  court,  in  vari- 
ous cases,  some  of  which  have  been  recognised  by  legislative 
enactments,(6)  it  will  act  upon  the  evidence,  derived  from  affidavits 
taken  in  a  foreign  country.  Prior  to  the  revolution  a  dedimus  was 
always  sent  to  obtain  an  answer  from  a  defendant  resident  in  any 
of  the  neighbouring  colonies  or  in  a  foreign  State,(f)  and  now  com- 
missions are  often  sent  to  other  States  of  this  Union, (ri)  and  into 


(a)  Eden,  Inj.  78 ;  Alexander  v.  Alexander,  MS.,  13th  December,  1S17.— (6)  1797, 
ch.  114,  s.  5.— (c)  Chan.  Pro.  lib.  D.  D.  No.  J.  folio  6,  .59,  &c.— (rf)  Hunt  v.  Wil- 
liams, Taylor's  Rep.  318. 

45 


354  GIBSON  V.  TILTON. 

foreign  nations  to  take  testimony  where  the  commissioners  must  be 
sworn,  by  some  magistrate  of  the  place,  before  they  can  proceed  to 
act.  So  an  affidavit  verifying  the  truth  of  an  answer,  made  before 
a  magistrate  duly  authorized  to  administer  an  oath  in  the  country 
where  the  respondent  resides,  has  long  been  admitted  as  sufficient. 
The  acts  of  foreign  magistrates,  in  all  such  cases,  are  however 
considered  as  having  been  done  under  the  authority  of  this  court ; 
and  as  deriving  their  sanction  from  the  judicial  power  of  this  State, 
not  from  that  of  the  foreign  State.  For,  standing  unconnected  in 
the  foreign  State  with  that  to  which  they  relate  here,  they  would 
be  there  wholly  unintelligible  and  inoperative.  This  interchange 
of  courtesies,  in  aid  of  judicial  proceedings,  seems  to  be  as  com- 
mon among  the  nations  of  Europe,  as  it  is  w^ith  the  several  States 
of  our  Union. (e)  And  in  all  such  cases  it  would  seem,  that  the 
comity  of  nations  is  carried  so  far,  that  the  public  functionaries 
will  not  only  suffer  the  commission  to  be  executed  by  the  commis- 
sioners to  whom  it  is  sent,  but  if  necessary,  will  compel  a  witness 
to  appear  and  testify,  so  that  his  deposition  may  be  taken,  and 
returned  to  the  tribunal  of  the  foreign  nation  whence  the  commis- 
sion emanated,  (y) 

The  tribunals  of  this  State  have  often  found  it  necessary  to  ask 
the  assistance  of  the  judicial  power  of  the  other  States  of  our 
Union  or  of  foreign  countries  to  procure  testimony  or  obtain  the 
means  of  administering  justice.  And  in  doing  so  those  courts 
alone  who  ask  or  accept  such  assistance  can  have  the  authority  to 
regulate  its  nature,  form  and  extent.  And  they  have  accordingly 
laid  it  down  as  a  general  rule,  that  such  acts,  although  varying  in 
form  in  each  case  according  to  circumstances,  must  yet  contain  all 
the  requisites  essential  to  such  acts  when  done  here.(g-)  But  the 
court,  in  such  cases,  is  not  called  on  to  give  any  faith,  or  credit, 
or  to  pass  any  opinion  upon  the  effect  of  a  judicial  proceeding  of 
anotJier  State.  If  it  were,  then  that  matter  having  been  regulated 
by  the  Constitution  and  laws  of  the  United  States,  it  certainly 
would  be  bound  to  submit  to  those  regulations  so  far  as  they 
applied.  But  the  question,  how  far  this  court  will  ask  for,  or 
accept  of  affidavits  taken  in  another  State,  as  the  medium  of  that 

(e)  Dalmer  v.  Barnard,  7  T.  R.  251 ;  Ex  parte  Worsley,  2  H.  Blac.  275;  Omealy 
V.  Newell,  8  East,  364 ;  Hornby  v.  Pcmberton,  Mosely,  5S  ;  Gason  v.  Wordsworth, 
2  Ves.  325,  336 ;  Garvey  v.  Hibbert,  1  Jac.  &,  Walk.  180;  Brahara  v.  Bowes,  1  Jac. 
&  Walk.  2%.— (/)  Young  v.  Cassa,  3  Eccle.  Rep.  417  ;  Mitchell  v.  Smith,  1  Paige, 
237  ;  Mitf.  Plea.  186,  notes.— (g-)  Tidd,  Pra.  156. 


GIBSON  V.  TILTON.  355 

evidence  without  which  it  will  not  act,  is  one  of  a  totally  different 
nature  from  that,  which  involves  the  verity  or  effect  of  a  judicial 
proceeding,  which  had  been  originated  and  completed  entirely  in 
another  State ;  and  with  the  formation  of  which  it  could  have  no 
concern.  The  Constitution,  and  act  of  Congress  of  the  United 
States,  therefore,  can  have  no  bearing  upon  the  subject  now  under 
consideration. 

With  regard  to  the  affidavit  to  this  answer,  it  is  certainly  not 
couched  in  phraseology  as  full  and  exact  as  it  ought  to  have  been. 
But  it  is  conceived  to  be  expressed  in  terms  sufficiently  clear  and 
strong  to  sustain  a  prosecution  for  perjury,  if  it  had  been  made  in 
this  State,  and  the  answer  had  been  found  to  be  false  in  any 
material  particular.  And  although,  as  it  would  seem,  no  such 
prosecution  could  be  sustained  here  upon  a  false  oath  taken  in 
anotlier  State  however  correct  and  positive  the  affidavit  might  have 
been ;  yet  the  parties  may,  should  the  answer  turn  out  to  be  false 
or  the  affidavit  be  ascertained  to  be  spurious,  be  punished  for  prac- 
tising an  imposition  on  the  court.(/i) 

These  preliminary  objections  being  removed,  it  appears,  on  a 
careful  consideration  of  the  answer,  that  it  is,  in  all  respects,  suf- 
ficient ;  and  that  it  has  completely  sworn  away  all  the  equity  of  the 
complainant's  bill. 

I  know  of  no  such  rule  as  that  which  was  insisted  on  by  the 
plaintifTs  solicitor;  that  where  XYve  facts  on  which  the  complain- 
ant's equity  rests  are  alike  within  the  knowledge  of  both  parties ; 
and  the  allegation  of  them  by  each  in  an  opposite  bearing  is 
equally  positive,  the  injunction  must  be  continued.  The  rule  is, 
that  on  a  motion  to  dissolve,  the  facts  on  which  the  plaintifTs 
equity  rests  must  be  admitted  or  not  denied,  or  he  cannot  obtain  a 
continuance  of  the  injunction.  But  if  they  are  positively  denied 
by  the  answer  the  injunction  must  be  dissolved. (i)  There  may  be 
exceptions  to  this  rule,  but  this  case  is  not  one  of  them. 

Whereupon  it  is  ordered,  that  the  injunction  heretofore  granted 
is  hereby  dissolved. 


After  which  testimony  was  taken  and  the  case  brought  before 
the  court  on  a  final  hearing ;  when  it  appearing,  that  the  plaintiff 
had  failed  to  sustain  his  case  by  proof,  by  a  decree  passed  on  the 
4th  of  November  1829,  the  bill  was  dismissed  with  costs. 

(A)  Omealy  v.  Newell,  8  East,  372.— (t)  Eden,  Inj.  86. 


356  DORSEY  V.  CAMPBELL 


DORSEY  V.  CAMPBELL. 

A  purchased  of  B  a  tract  of  land,  for  which  A  stipulated  to  pay  in  bonds  and  notes 
endorsed  by  him,  and  for  the  eventual  solvency  of  which  he  should  be  responsible. 
Held  that  A  must  deliver  to  B  such  choses  in  action  within  a  reasonable  time ; 
but  could  not  do  so  after  he  had  filed  his  bill  against  B,  for  a  specific  performance  : 
And  that  B  must  use  due  diligence  in  collecting  the  choses  in  action  so  put  into 
his  hands  ;  and  should  be  allowed  all  proper  expenses,  to  be  deducted  from  the 
sums  collected. 

On  a  bill  for  specific  performance,  where  the  agreement  is  admitted  or  proved  as  set 
forth  in  tlie  answer,  no  cross  bill  is  necessary,  but  a  decree  may  be  passed  against 
each  party  according  to  the  extent  of  his  liability — against  the  one  directing  him 
to  convey  the  estate ;  and  against  the  other  ordering  him  to  pay  the  purchase 
money. 

The  mode  in  which  a  purchaser  of  land  under  a  fieri  facias  from  this  court  may  obtain 
possession,  as  directed  by  the  act  of  1825,  ch.  103. 

This  bill  was  filed  on  the  16th  of  June,  182.3,  by  Clement  B or sey 
against  James  Campbell  and  Johi  Ritchie^  to  enforce  the  specific 
performance  of  an  agreement.  The  bill  states,  that  Henry  Anderson 
had  conveyed  to  the  defendants  two  tracts  of  land  in  Charles 
county,  which  lands  they  had  sold  and  contracted  to  convey,  clear 
of  all  incumbrances,  to  this  plaintiff;  that  as  a  means  of  making 
payment  for  the  lands,  it  was  agreed,  that  the  plaintiff  should  assign 
to  the  defendants  certain  debts  and  choses  in  action  ;  that  he  made 
the  assignments  accordingly,  upon  which  the  defendants  had  made 
collections  and  recovered  judgments  to  the  whole  amount  of  the 
purchase  money ;  and  yet,  that  they  had  refused  to  execute  and 
deliver  a  deed  conveying  the  legal  title  of  those  lands  to  the 
plaintiff.  Whereupon  the  plaintiff  prayed,  that  the  defendants 
might  be  ordered  to  convey  the  lands  according  to  the  terms  of 
the  agreement,  and  for  general  relief. 

The  defendants  Campbell  ^  Ritchie,  on  the  6th  of  December, 
1823,  put  in  their  answer,  in  which  they  admit  the  contract  as 
stated  in  the  bill ;  but  deny,  that  they  had  collected,  or  were  then 
able  to  collect,  the  whole  amount  of  the  purchase  money  from  the 
choses  in  action  which  had  been  assigned  to  them ;  that  they  had 
offered  to  convey,  and  were  then,  and  always  had  been  ready  to 
execute  a  conveyance  of  the  legal  title,  on  receiving  the  whole 
amount  of  the  purchase  money ;  and  that  some  of  the  choses  in 
action,  which  had  been  assigned  to  them,  and  from  which  they  had 
been  utterly  unable  to  collect  any  thing,  they  then  held,  and  were 
ready  to  re-assign  to  the  plaintiff. 


DORSEY  V.  CAMPBELL.  357 

After  which  the  parties,  by  agreement,  admitted  sundry  facts 
and  some  exhibits  which  had  been  previously  filed  ;  and  the  case 
was  brought  before  the  court  for  final  hearinfj. 

lAth  January,  1825. — Blanp,  Chancellor. — The  arguments  of 
counsel  having  been  heard  in  this  case,  the  proceedings  were  read 
and  considered. 

It  appears,  that  Campbell  4i*  Ritchie  being  seized  of  two  tracts 
of  land,  sold  them,  clear  of  all  incumbrances,  to  Dorsey,  for  the 
sum  of  fourteen  hundred  and  sixty-two  dollars  and  fifty  cents,  to 
bear  interest  from  the  eighth  day  of  June,  1815,  when  the  purchaser 
was  put  into  possession,  until  paid.  So  far  the  case  admits  of  no 
difficulty. 

As  to  the  manner  in  which  Dorsey  was  to  make  payment  to 
Campbell  Ss  Ritchie,  the  receipt  or  agreement  of  the  12th  of  July, 
1816,  is  expressed  in  these  words  :  "  And  for  which  they  are  to  be 
paid  in  bonds,  notes,  and  other  claims  endorsed  by  C.  Dorsey,  Esq." 
And  the  assignment  of  the  same  date,  made  by  Dorsey,  is  expressed 
in  these  words :  "I  hereby  assign  unto  Henry  Chapman,  Esq.,  for 
the  use  of  Campbell  ^  Ritchie,  the  above  causes  of  action,  which 
are  supposed  to  be  correct,  with  an  understanding  and  agreement, 
that  I  am  responsible  for  their  eventual  solvency."  The  general 
expressions,  "to  be  paid  in  bonds,  notes,  and  other  claims," 
without  any  distinct  specification,  can  only  be  understood  as  an 
indication  of  the  character  of  the  fund  which  was  to  be  placed  by 
the  plaintiff  under  the  legal  command  of  the  defendants  to  the  full 
amount  of  the  purchase  money.  If  Dorsey  had  failed  or  refused 
to  place  in  the  hands,  or  at  the  disposal  of  Campbell  &,'  Ritchie, 
choses  in  action  to  the  full  amount  of  the  purchase  money,  then  he 
would  have  been  liable  for  the  whole,  or  ^;ro  taiito,  on  the  ground 
of  a  non  compliance  with  his  contract.  If  there  had  been  nothing 
added  to  this  general  specification  of  the  fund,  out  of  which  pay- 
ment was  to  be  made,  the  contract  might  have  been  considered  in 
the  light  of  an  exchange  or  barter  of  one  article  of  value  for 
another,  deemed  to  be  of  equal  value, — a  conveyance  of  land  in 
consideration  of  an  assignment  of  choses  in  action  only,  without 
the  further  responsibility  of  the  assioTior. 

But  the  contract  informs  us,  that  the  payment  was  to  be  made, 
"  in  bonds,  notes,  and  other  claims,  indorsed  by  C.  Dorsey,  Esq. ;" 
and  also  that  Dorsey  expressly  says,  "  I  am  responsible  for  their 
eventual  solvency. ^^  The  fair,  clear  sense  of  these  expressions 
removes  everj^  difficulty.     Dorsey  was  to  have  the  privilege  of 


358  DORSEY  V.  CAMPBELL. 

paying  out  of  a  designated  fund,  to  be  placed  in  the  hands,  and  at 
the  disposal  of  Campbell  4*  Ritchie ;  but  he  was  to  warrant,  that, 
with  due  and  proper  diligence  on  their  part  in  endeavouring  to 
make  it  available,  it  would  be  ultimately  productive  to  the  w^hole 
amount  of  the  purchase  money.  It  does  not  appear,  that  Campbell 
fy  Ritchie  are  chargeable  with  any  want  of  diligence  in  endeavour- 
ing to  collect  the  money  due  on  the  choses  in  action  transferred  to 
them. (a) 

It  would  seem,  from  the  expressions  of  the  contract,  that  Dorsey 
was  to  be  allowed  a  reasonable  time  to  assign,  and  deliver  to 
Campbell  ^  Ritchie,  or  their  agent,  choses  in  action,  out  of  which 
they  were  to  collect  the  amount  stipulated  to  be  paid  to  them  ; 
but  that  time  has  elapsed ;  and  indeed,  Dorsey,  by  bringing  this 
suit  has  virtually  waived  the  privilege  of  referring  the  defendants 
for  payment  to  any  choses  in  action  in  addition  to  those  he  had 
already  transferred  to  them. 

This  case,  then,  stands  thus  : — Dorsey  must  be  charged  wnth 
the  sum  of  fourteen  hundred  and  sixty-two  dollars  and  fifty  cents, 
with  interest  from  the  eighth  day  of  June,  eighteen  hundred  and 
fifteen  ;  first  deducting  therefrom  the  amount  of  the  incumbrances 
on  the  land ;  that  is,  the  judgment  against  Anderson,  the  former 
owner,  and  also  the  taxes  due  when  Dorsey  got  possession.  Dorsey 
is  then  to  be  credited  with  the  sums  actually  received  by  Campbell 
^  Ritchie  from  the  choses  in  action  transferred  to  them.  And, 
since  the  object  of  this  mode  of  payment  was  merely  to  prevent 
Dorsey  from  being  called  on  until  Campbell  ^'  Ritchie  had  used 
every  proper  exertion  to  make  the  specific  funds  available,  Dorsey 
is  only  to  be  accredited  with  the  net  proceeds  of  the  choses  in 
action  received  by  Campbell  Sf  Ritchie,  or  their  attorney,  after 
allowing  every  legal  discount  or  set  off,  and  expense  of  collection 
on  each  one.  No  expense  or  charge,  however,  is  to  be  allowed 
for  paying  over  any  money  so  received,  from  the  attorney  of  Camp- 
bell ^  Ritchie  to  them.  But  the  credit  is  to  be  given  to  Dorsey  as 
a  payment  on  the  day  on  which  such  proceeds  were  received,  either 
by  Campbell  8f  Ritchie,  or  their  attorney.  If  any  of  the  debtors 
chargeable  by  the  choses  in  action  assigned  by  Dorsey,  have  been 
ascertained  to  be  wholly  or  partially  insolvent,  he  must  be  charged 
to  that  amount. 

With  these  explanations  and  determinations  as  to  the  principles 

(a)  Boyer  v.  Turner,  3  H.  8t  J.  285. 


DORSEY  V.  CAMPBELL.  359 

of  this  case,  it  is  hereby  referred  to  the  auditor,  with  directions  to 
state  an  account  accordingly,  preparatory  to  a  final  decree. 


In  obedience  to  this  order,  the  auditor,  on  the  16th  of  September, 
1825,  made  a  report,  in  which  he  stated  the  amount  of  the  balance 
then  due  from  the  plaintiff  to  the  defendants  ;  to  which  the  plaintiff 
filed  no  exceptions. 

29th  March,  1826. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing,  and  having  been  submitted,  the  proceedings 
were  read  and  considered. 

This  is  a  bill  for  a  specific  performance  of  a  contract  between 
the  plaintiff  and  the  defendants.  From  the  agreement,  as  stated 
and  admitted,  it  appears,  that  each  party  was  bound  to  perform 
something  for  the  benefit  of  the  other.  The  plaintiff  bound  him- 
self to  pay  to  the  defendants  the  whole  amount  of  the  purchase 
money ;  and  the  defendants  bound  themselves,  on  being  so  paid, 
to  convey  to  the  plaintiff  the  two  specified  parcels  of  land.  It  now 
appears  that  a  part  of  the  purchase  money  is  still  due ;  and  that  no 
conveyance  of  the  legal  title  has  been  yet  executed  and  delivered. 
In  cases  of  this  kind,  according  to  the  ancient  course  of  the  court, 
it  was  necessary  to  file  a  cross-bill,  in  order  that  each  party  might 
be  decreed  to  perform  that  to  which  he  had  bound  himself  But 
this  circuitous  and  expensive  course  has,  of  late,  been  dispensed 
with  in  all  cases  where  the  plaintiff,  by  his  bill,  offers  to  perform 
the  agreement ;  and  it  is  admitted,  or  set  out  in  the  answer,  and 
proved  as  thus  set  forth  by  the  defendant.  No  cross-bill  has  for 
some  time  past  been  deemed  necessary,  either  in  England  or  in 
Maryland,  in  such  cases  ;  but  a  decree  is  passed  in  favour  of  each 
party  for  that  to  which  he  is  entitled  ;  upon  the  ground,  that  the 
whole  matter  in  controversy  has  thus  been  well  and  sufficiently 
brought  before  the  court,  put  in  issue,  and  considered  by  such  an 
original  bill,  answer  and  proofs. (6) 

(6)  Fife  V.  Clayton,  13  Ves.  546 ;  Higginson  v.  Clowes,  15  Ves.  525. 

Watkins  v.  Watkins. — This  bill  was  filed  on  the  7th  of  November,  1798,  by 
Tobias  Watkins,  an  infant,  by  William  Kilty  his  guardian.  It  states,  that  some  time 
before  the  year  1770,  an  agreement  was  entered  into  between  the  late  father  of  the 
defendant  with  the  late  father  of  the  plaintiff,  whereby  the  defendant's  father  con- 
tracted to  convey  to  the  plaintiff's  father,  a  certain  tract  of  land,  and  accordingly  put 
the  plaintiff's  father  into  possession,  which  has  been  held  by  him  and  the  plaintiff, 
his  only  son  and  heir,  ever  since  ;  and  that  the  purchase  money  has  been  paid,  but 
the  legal  title  has  not  been  conveyed ;  that  the  defendant  brouglit  an  action  of  eject- 
ment for  the  recovery  of  the  land,  and  threatens  to  turn  the  plaintiff  out  of  possession. 


360  DORSET  V.  CAMPBELL. 

Whereupon  it  is  decreed^  that  the  auditor's  report  be,  and  the 
same  is  hereby  ratified  and  confirmed.     And  it  is  further  decreed, 

Prayer  for  a  specific  performance,  and  that  the  defendant  may  be  restrained  by 
injunction  from  proceeding  further  at  law.  An  injunction  bond  was  filed.  Injunction 
granted.     The  defendant  answered,  and  proofs  were  taken,  &c. 

21th  March,  1802. — HaxsoiV,  Chancellor. — This  cause  being  submitted  on  the 
arguments  in  \vriting  of  the  counsel,  the  bill,  answer,  depositions,  with  the  said 
arguments  and  all  other  proceedings,  were  by  the  Chancellor  read  and  considered. 

Some  of  the  material  facts  stated  in  the  bill  are  neither  admitted  by  the  answer, 
nor  established  by  the  depositions.  The  circumstances  of  this  case  are  indeed 
peculiar;  and  a  dause  recently  decided  in  the  High  Court  of  Appeals,  without 
explaining  the  principles  of  their  decision,  has  rendered  uncertain  to  the  Chancellor 
what  principles  are  to  govern  in  cases  where  the  performance  of  an  old  agreement  is 
sought  in  this  court.  He  would  certainly  be  guided  by  the  opinion  of  that  court,  if 
he  knew  it.  Upon  the  whole  he  conceives,  that  the  best  thing  he  can  do  for  the 
interests  of  both  parties,  and  to  render  justice,  and  to  put  an  end  to  controversy,  is 
to  recommend  a  reasonable  compromise. 

He  then  proposes  a  decree  by  consent,  to  the  following  effect,  viz. — 1.  The  injunc- 
tion shall  be  made  perpetual ;  and  the  defendant  shall  convey  to  the  complainant  and 
his  heirs,  all  his  right,  title,  interest  and  estate  in  and  to  the  land  which  is  the  subject 
of  contest. — 2.  The  complainant,  on  or  before  the  first  day  of  next  October  term, 
shall  bring  into  court,  to  be  paid  to  the  defendant,  the  sum  of  one  hundred  and  sixty- 
six  pounds,  thirteen  shillings  and  four  pence  current  money. — 3.  The  defendant  shall 
not  be  compelled  to  make  the  said  conveyance  until  the  bringing  in  or  payment,  or 
levying  of  the  said  sum.  And  if  the  said  money  be  not  brought  in,  as  aforesaid,  the 
-defendant,  at  his  election,  may  either  have  the  process  of  this  court,  on  application 
to  the  Chancellor,  to  enforce  the  payment  of  the  said  sum,  with  interest,  from  the 
said  first  day  of  October  term,  or  shall  be  at  liberty  to  have  a  writ  or  process  from 
the  court  of  law  to  obtain'  possession  of  tlie  land,  by  him  recovered  by  his  ejectment, 
as  stated  in  the  bill,  the  injunction  aforesaid  notwithstanding :  and  the  complainant 
shall  be  prohibited  from  any  relief  in  this  court,  on  the  agreement  stated  in  the  bill. 
4.  Each  party  shall  sustain  his  own  costs  in  this  court  and  in  the  court  of  law. 

On  the  application,  by  petition,  at  any  time,  of  either  party,  who  shall  hereby 
refuse  to  accede  to  this  recommendation,  the  Chancellor,  without  del&y  will  proceed 
to  decree,  accordiog  to  the  best  of  his  judgment  and  conscience. 


The  defendant  Nicholas  Watkins  assented  to  the  terms  proposed  by  the  Chancellor. 
Upon  which  the  following  decree  was  passed. 

ZQth  August,  1802. — Haxsox,  Chancellor. — The  defendant  having  fully  acceded  to 
the  recommendation  of  the  Chancellor,  and  pressed  him  to  decree,  he  conceives,  that 
there  is  no  valid  objection  against  decreeing  according  to  the  recommendation, 
although  the  complainant  hath  not  acceded  to  it. 

It  is  thereupon  Decreed,  that  the  injunction  in  this  cause  issued  shall  be,  and  it  is 
hereby  declared  to  be  perpetual ;  and  that  the  defendant,  by  a  good  deed,  to  be 
acknowledged  and  recorded  legally,  convey  to  the  complainant  Tobias  and  his  heirs 
all  his  the  said  defendant's  riglit,  title  and  interest  in  and  to  the  land  in  the  bill  men- 
tioned, part  of  a  tract  called  "  Friends'  Choice,"  as  in  the  bill  described.  It  is  further 
decreed,  that  the  complainant,  on  or  before  the  first  day  of  next  October  term,  shall 
bring  into  court,  to  be  paid  to  the  defendant,  the  sum  of  one  hundred  and  sixty-six 
pounds  thirteen  shillings  and  four  pence  current  money.  Provided  nevertheless,  that 
the  said  defendant  shall  not  be  compelled  to  execute  the  said  deed  until  the  bringing 


DORSEY  V.  CAMPBELL.  3g2 

that  the  complainant  Clement  Dorsey  do,  on  or  before  the  twentieth 
day  of  April  next,  pay  to  the  defendants  Campbell  <^'  Ritchie^  or 


in  as  aforesaid,  or  payment  to  him,  or  the  le\ying  of  the  said  sum  by  execution  ;  and 
provided  also,  that  if  the  said  money  be  not  brought  in  as  aforesaid,  the  defendant  at 
Lis  election  shall  either  be  entitled  to  the  process  of  this  court,  on  application  to  the 
Chancellor  to  enforce  the  payment  of  the  said  sum,  with  interest  from  the  said  first 
day,  or  shall  be  at  liberty  to  have  a  writ  or  process  from  the  court  of  law  to  obtain 
possession  of  the  said  land  by  him  recovered,  as  stated  in  the  bill,  the  injunction 
aforesaid  notwithstanding.  And  the  complainant  shall  be  precluded  from  any  relief 
in  this  court  on  the  agreement  stated  in  his  bill.  Each  party  shall  sustain  his  own 
costs  in  this  court  and  in  the  court  of  law. 


Long  v.  Gorsuch. — This  bill  was  filed  on  the  9th  of  September,  1802,  by  John 
Long  against  Richard  Gorsiich;  after  which  it  was  amended,  introducing  some  now 
matter,  and  making  John  Gorsuch  also  a  defendant.  From  the  original  and  amended 
bill  it  appears,  that  on  the  Sth  of  November,  1800,  the  plaintiff  Long  entered  into 
articles  of  agreement  with  the  defendant  Richard  Gorsuch,  by  which  it  was  stipu- 
lated, that  Long  should,  in  consideration  of  $1300,  convey  to  Richard  Gorsuch  a 
house  and  lot  in  the  city  of  Baltimore  ;  and  that  Richard  Gorsuch  should  convey  to 
Long  one  hundred  and  fifty  acres  of  land  in  Baltimore  county,  and  all  the  giain  then 
growing  on  it  valued  at  sixty  dollcrs ;  and  one  cow  at  fourteen  dollars ;  and  at  the 
end  of  twelve  months  Richard  was  to  pay  Long  the  further  sum  of  twpnt}--six  dol- 
lars ;  which  was  to  be  in  full  pa}'ment  for  the  specified  coniideration  of  thirteen  hun- 
dred dollars.  But  if  the  tract  of  land  should  measure  more  than  one  hundred  and 
fifty  acres,  then  Long  agreed  to  pay  at  the  rate  of  eight  dollars  per  acre  for  all  above 
that  quantity.  And  it  was  further  agreed,  that  each  of  the  parties  w^as  to  put  the 
other  into  possession.  The  bill  alleges,  that  possession  had  been  exchanged  and 
given  as  agreed  upon  ;  but  that  the  defendant  Richard  had,  in  fact,  no  more  than  a 
mere  equitable  title  at  most,  and  that  the  legal  title  to  the  land  was  then  in  his  father 
the  defendant  John  Gorsuch,  who  had  been  privy  to  the  contract,  and  with  a  full 
knowledge  of  it,  had  stood  by,  knowing  of  the  valuable  improvements  made  by  the 
plaintiff,  without  giving  him  notice,  that  he  John  then  held  the  legal  title.  Upon 
which  the  bill  prayed  for  a  specific  performance  of  the  contract,  and  for  general 
relief 

The  defendants  by  their  answers  admitted  the  contract  as  set  out,  and  averred, 
that  they  were  then  competent,  ready  and  willing  to  make  a  good  legal  title  to  the 
tract  of  land  sold ;  and  in  all  respects  to  comply  with  the  contract  on  the  part  of 
Richard  Gorsuch ;  and  prayed,  that  the  plaintiff  might  be  compelled  to  convey  the 
house  and  lot  as  stipulated,  and  to  pay  for  the  excess  in  the  tiact  of  land  accordin"- 
to  the  terms  of  his  agreement. 

A  commission  was  issued  and  proofs  taken;  and  a  sun'ey  was  ordered,  which  was 
executed,  and  a  certificate  and  plot  returned  showing  the  number  of  acres  contained 
in  the  tract  of  land  lying  in  Baltimore  county ;  after  which  the  case  was  brou"-ht  on 
for  a  final  hearing. 

18//i  March,  1815.— Kilty,  Chancellor.— T\\\=i  suit  being  then  on  the  trial  docket 
was  submitted  at  December  term  last  by  tlie  defendant  on  an  abstract  filed. 

It  appears  thatthc  price  of  the  lot  in  Baltimore,  viz.  .fJlSOO,  was  to  be  made  up 
by  land  in  Baltimore  countj',  estimated  to  contain  1-50  acres,  and  (o  amount  to 
$1200 ;  and  the  other  $100  in  wheat  in  the  ground,  a  cow,  and  $26  in  money.  And 
for  every  acre  exceeding  150,  Long  was  to  pay  Gorsucli  at  tlic  rate  of  eight  dollars 
per  acre.    The  bill  prays  for  a  conveyance  of  the  lands,  or  in  case  a  good  title  can- 

46 


362  DORSEY  V.  CAMPBELL. 

bring  into  this  court,  to  be  paid  to  them,  the  sum  of  eight  hundred 
and  twenty-two  dollars  and  seventy-eight  cents,  with  interest 
thereon  from  the  first  day  of  December,  1822. 

And  it  is  further  decreed^  that  the  said  Campbell  and  Ritchie  do, 


not  be  obtained,  or  Inere  should  be  a  deficiency,  that  the  $1300  may  be  paid  back. 
As  the  proceedings  stand  under  the  amended  bill,  the  Chancellor  does  not  perceive, 
that  there  is  anv  defect  of  title,  but  is  of  opinion  that  justice  may  be  done  to  the 
parties  by  decreeing  mutual  conveyances,  and  also  by  compelling  the  complainant  to 
pay  for  the  excess.  A  plot  has  been  returned  under  the  order  of  the  court,  by  which 
the  excess  appears  to  be  62  acres,  making  at  $S,  $-i96.  From  which  the  $26  agreed 
on  being  deducted  the  sum  due  is  $470.  No  exception  has  been  made  to  the  survey 
so  returned ;  and  therefore  it  is  taken  as  tlie  proper  evidence  for  ascertaining  the 
quantity.  The  complainant  Long,  having  had  the  use  of  this  excess  of  land,  a  claim 
for  interest  might  on  that  account  be  made,  but  inasmuch  as  Gorsuch  did  not  take 
any  measures  to  have  the  land  surveyed,  and  difficulties  aiose  as  to  the  title,  it  is 
deemed  improper  to  allow  such  interest. 

It  is  thereupon  decreed,  that  the  complainant,  John  Long,  do  on  or  before  the  tenth 
day  of  April  next,  pay  to  the  defendant  Richard  Gorsuch,  or  bring  into  this  court  to 
be  paid  to  him,  the  sum  of  four  hundred  and  seventy  dollars,  and  that  he  pay  legal 
interest  on  the  said  sum  from  the  said  10th  of  April  1815,  if  the  principal  should 
not  then  be  paid.  And  also  that  the  said  complainant  John  Long,  do  by  a  good  and 
sufficient  deed  to  be  executed  and  acknowledged  according  to  law,  convey  to  the 
defendant,  his  heirs  or  assigns,  all  that  messuage  or  tenement  in  the  agreement  exhi- 
bited, dated  the  8th  of  November,  1800,  mentioned  lying  and  being  in  that  part  of 
the  city  of  Baltimore,  called  Fell's  Point,  fronting  thirty  feet  on  Anne  street,  and 
sixty  feet  on  Lancaster  alley,  thence  with  the  division  line  of  said  tract  thirty  feet, 
£ind  thence  with  a  straight  lino  to  the  fir.st  place  of  beginning  of  the  first  thirty  feet. 

And  it  is  further  decreed,  that  the  defendants,  Richard  Gorsuch  and  John  Gorsuch, 
do  by  a  good  and  sufficient  deed  to  be  executed  and  acknowledged  according  to  law, 
convey  to  the  complainant  John  Long,  in  fee  simple,  two  hundred  and  twelve  acres 
of  land  in  Baltimore  county,  known  by  the  name  of  Charles'  Mistake,  and  the 
Resurvey  on  Cockpit,  the  same  being  the  land  mentioned  in  the  agreement  of  the 
8th  of  November,  1800,  as  containing  150  acres,  together  with  the  excess  of  62 
acres,  appearing  on  the  survey  returned  to  the  court,  the  part  called  the  Resurvey  on 
the  Cockpit,  being  called  therein  Ellis'  Folly.  The  said  conveyance  to  be  made  on 
the  payment  or  bringing  in  of  the  sum  of  470  dollars,  with  the  interest  thereon  as 
herein  before  decreed.     The  parties  respectively  to  pay  their  own  costs. 


A  copy  of  this  decree  having  been  served  on  the  plaintiflf  as  then  required  by  the 
act  of  1785,  ch.  72,  s.  25,  and  the  amount  not  having  been  paid  by  him ;  on  the 
petition  of  the  defendant  Richard  Gorsuch,  a  fieri  facias  was  issued  in  his  favour, 
against  the  plaintiff  on  the  31st  of  August  1816,  which  was  returned  by  the  sheriflf" 
of  Baltimore  county,  nulla  bona. 

The  act  of  1785,  ch.  72,  s.  21,  declares,  that  in  all  cases  tlie  defendant  may  exhibit 
interrogatories  to  the  plaintiff,  which  shall  be  answered  by  him,  &c.  A  similar 
enactment  in  Kentucky  has  been  so  construed,  that  such  interrogatories  are  in  all 
respects  regarded  as  a  cross  bill,  and  as  superseding  the  necessity  of  filing  such  a  bill 
as  well  in  cases,  like  this,  for  a  specific  performance  as  in  all  others.  Wilson  v.  Bod- 
ley,  2  Lin.  Rep.  57. 


DORSET  V.  CAMPBELL.  353 

by  a  good  and  sufficient  deed  to  be  executed  and  acknowledged 
according  to  law,  convey  to  the  said  complainant  Clement  Dorsey, 
in  fee  simple,  the  two  parcels  of  land  called  St.  Clair  and  Recom- 
pense, lying  and  being  in  Charles  county,  and  sold  and  conveyed 
by  Henry  Anderson  to  the  said  Campbell  §•  Ritchie^  and  subse- 
quently sold  to  the  said  Clement  Dorsey  by  the  said  Campbell  Sf 
Ritchie.  The  said  conveyance  to  be  made  on  the  payment  or 
bringing  in  of  the  sum  of  $822  78  with  interest  from  the  1st  of 
December,  1822,  as  aforesaid. 


Upon  this  decree  a  fieri  facias  was  issued  on  the  16th  of 
November  1826,  in  favour  of  the  defendants  for  the  sum  decreed 
to  them  against  the  plaintiff,  which  was  levied  on  the  lands  speci- 
fied in  the  decree  ;  and  they  were  sold  and  purchased  by  the  soli- 
citor of  the  defendants  for  their  use  for  the  sum  of  $710.  After 
which  on  the  19th  of  January,  1828,  the  defendants  filed  their 
petition,  stating  these  circumstances,  and  thereupon  prayed,  that 
the  possession  of  the  lands  might  be  delivered  to  them. 

2\st  January,  1828. — Bland,  Chancellor. — The  petition  of  the 
defendants  having  been  submitted  without  argument,  the  proceed- 
ings were  read  and  considered. 

It  appears  that  the  fieri  facias,  by  virtue  of  which  the  land  was 
sold,  was  returnable  to  March  term  1827;  but  was  not  actually 
returned  until  the  first  day  of  September  term  of  that  year ;  and 
this  application  to  have  the  possession  delivered  has  not  been 
made  until  after  the  end  of  the  term  then  next  following,  or 
December  term,  which  closed  on  the  15th  of  the  present  month. 

The  authority  of  this  court  to  cause  the  possession  of  land,  sold 
under  its  decree,  to  be  delivered  to  the  purchaser  thereof,  under 
certain  circumstances,  cannot  be  controverted ;  and  the  mode  of 
proceeding  in  such  cases  has  been  well  established.(c)     But  this 

(c)  Dove  V.  Dove,  Dick.  617 ;  Same  Case,  1  Bro.  C.  C.  .375  ;  Stribley  i-.  Hawkie, 
3  Atk.  275 ;  The  Commonwealth  v  Ragsdale,  2  Hen.  &,  Mun.  S. 

McKo.MB  V.  Kankey. — 20th  March,  1807. — Kilty,  Chancellor. — The  general 
power  of  the  Court  of  Chancery  to  issue  an  injunction,  directing  possession  to  be 
delivered,  is  sanctioned  by  the  practice  in  England  and  by  our  acts  of  assembly. 
The  decree  for  possession  and  injunction  is  a  process  demandable  of  ris:ht  as  much 
as  an  attachment  or  other  execution,  and  ought  not  to  be  refused  where  the  power  is 
considered  to  exist.  An  application  for  possession  in  such  cases  is  founded  on  the 
general  powers  of  the  court,  and  on  the  act  of  1785,  ch.  72,  s.  25,  which  provides 
that  the  Chancellor  may  cause  by  injunction  the  possession  of  the  estate  and  effects 
demanded  by  the  bill  and  petition,  and  whereof  the  possession  or  a  sale  is  decreed  to 
be  delivered  to  the  plaintiff  or  otherwise,  according  to  the  terms  and  import  of  such 


364  DORSET  V.  CAMPBELL. 

is  not  the  case  of  a  sale  of  land  under  a  decree.  The  relief  which 
the  petitioners  seek  can  only  be  obtained  according  to  the  course 
of  the  common  law,  or  in  the  manner  prescribed  by  the  late  act  of 
assembly,  (fi) 

This  is  the  first  application  which  has  been  made  to  the  Chan- 
cellor to  enforce  the  delivery  of  possession  according  to  the  provi- 
sions of  this  act.  It  is  declared,  that  whenever  any  lands  shall  be 
sold  by  virtue  of  any  process  of  execution  from  the  Court  of  Chan- 
cery ;  and  the  debtor  named  in  the  process,  or  any  other  person 
holding  under  such  debtor  by  tide  subsequent  to  the  date  of  the 
decree  shall  be  in  actual  possession  of  the  lands  so  sold,  and  shall 
fail  or  refuse  to  deliver  possession  of  the  same  to  the  purchaser 
thereof,  the  court,  on  the  application  of  the  purchaser,  and  on  no 
good  cause  having  been  shewn  to  the  contrary  by  the  said  debtor, 
or  other  person  concerned  within  the  first  four  days  of  the  term 
next  succeeding  that  to  which  said  process  was  returnable,  shall 
issue  a  writ  in  the  nature  of  a  writ  of  habere  facias  possessionem^ 
&c.  commanding  the  sheriff  to  deliver  possession  of  the  said  lands 

decree,  and  as  the  nature  of  the  case  may  require.  Under  which  last  part  of  the 
clause  the  injunction  may  be  modified  to  suit  the  particular  case.  In  this  case  the 
lands  had  been  sold  to  satisfy  a  mortgage.  Belbre  the  bill  was  filed,  but  after  the 
njortgage  was  made,  the  possessor  liad  leased  the  lands  of  the  mortgagor,  for  a  term 
of  years  yet  unexpired,  he  had  covenated  to  erect  a  mill  which  he  had  built,  and 
alleged  that  he  besides  made  other  permanent  improvements.  He  objected  that  he 
ought  to  have  been  made  party,  that  he  ought  to  be  allowed  for  his  lasting  improve- 
ments, and  tiiat  having  obtained  the  lease  without  notice  of  the  mortgage,  he  had  a 
right  to  hold  possession.  But  the  purchaser  taking  the  title  of  both  plaintiff  and 
defendant,  has  obtained  a  right  paramount  to  that  of  this  occupying  lessee  who  claims 
under  the  defendant,  who  could  give  him  no  right  in  opposition  to  that  of  the  mort- 
gagee whose  deed  had  been  duly  recorded.  This  lessee  must  seek  reimbursement 
for  his  improvements  and  otlier  losses  fi-om  his  lessor  in  whose  place  he  stood. 
"Whereupon  it  is  ordered,  that  the  possession  be  delivered ;  and  that  an  injunction  be 
JLSSued  accordingly.  

Chaplixe  v.  Chapline. — 12//i  July,  1810. — Kilty,  Chancellor. — The  Chancel- 
lor has  not  fully  made  up  his  mind  as  to  the  power  of  the  court  to  grant  the  injunc- 
tion herein  prayed ;  but  supposing  it  to  exist,  he  is  not  satisfied  that  it  would  be 
proper  to  exercise  it  at  this  time  when  it  would  be  attended  with  the  loss  of  the  crop 
growing  on  the  land.  But  it  is  ordered  tliat  an  injunction  be  issued,  in  the  manner 
which  will  then  be  directed,  unless  cause  be  shewn,  or  appear  to  the  contrary  during 
the  first  four  days  of  September  term  next :  provided  a  copy  of  this  order  be  served, 
&c.  before  the  15th  August  next. 

No  suffif  ipnt  cause  having  been  shewn,  an  injunction  was  ordered  on  the  5th  of 
October  following. 

(i)  1825,  eh.  103;  18:31,  ch.  41. 


DORSEY  V.  CAMPBELL.  3^5 

to  the  purchaser  thereof;  without  any  saving  or  exception  as  to 
the  then  growing  or  unfinished  crop  of  the  occupying  tenant, 
which,  in  favour  of  agriculture  and  for  the  benefit  of  the  public,  is 
almost  always  made  by  this  court  as  well  where  the  land  is  directed 
to  be  delivered  by  the  decree  itself  to  a  party,  as  where  it  is  ordered 
to  be  delivered  to  a  purchaser  from  a  trustee  who  made  sale  of  it 
under  a  decree. (e) 

This  summary  mode  of  proceeding  by  a  purchaser  to  obtain  the 
possession  of  lands  which  he  has  bought  at  a  sale  made  by  virtue 
of  an  execution  issuing  from  the  Court  of  Chancery,  is  thus  specially 
and  particularly  described.  And  the  time  for  showing  cause  why 
he  should  not  be  thus  put  into  possession,  is  limited  to  the  first  four 
days  of  the  term  next  succeeding  that  to  which  said  process  was 
returnable.  This  application  has,  therefore,  been  made  according 
to  the  manner  and  after  the  time  allowed  for  showins:  cause,  for  it 
is  not  made  necessary  for  the  applicant  to  call  upon  the  occupant 
to  show  cause,  as  the  public  sale  is  assumed  by  this  law  to  be  a 
sufficient  notice  to  him  of  the  peril  in  which  he  stands ;  and  the 
first  four  days  of   the  term  next  succeeding  that  to  which  the 

(e)  Rawlings  ik  CaiToll,  ante,  75  ;  Wren  v.  Kirton,  8  Ves.  502  ;  Sugden,  Vend. 
&  Pur.  42;  Gland's  Case,  5  Co.  116;  Co.  Litt.  55,  b. 

Wright  v.  Wright. — 1716. — Decreed,  that  the  defendant  convey  to  the  com- 
plainant, John  Wright  and  his  heirs,  the  land  in  dispute  on  his  or  their  paying  the 
defendant  forty  pounds  sterling  by  good  bills  of  exchange  ;  and  that  she  have  liberty 
to  finish  the  crop  now  upon  hand ;  and  that  the  said  John  Wright  enter  thereupon 
by  Christmas  day,  but  not  to  disturb  her  in  the  use  of  the  houses  until  she  has  fin- 
ished the  shipping  and  packing  the  crop,  and  the  use  of  Uie  quarter  in  the  interim. 
aian.  Records,  lib.  P.  L.  folio  292. 

Taylor  v.  Coleoate. — This  was  a  creditor's  bill  filed  on  the  25th  of  March, 
1803,  by  two  of  the  creditors  of  John  Colegate,  deceased,  against  his  six  children 
and  heirs,  five  of  whom  were  infants.  The  bill  states,  tliat,  being  indebted,  he  died 
without  leaving  a  sufficiency  of  personal  estate  to  pay  his  debts ;  but  that  he  held  an 
equitable  interest  in  certain  parcels  of  land,  which  it  was  prayed  might  be  sold  to 
pay  his  debts.  The  defendants  answered,  and  a  decree  was  passed  in  the  usual  form, 
directing  a  sale  to  be  made. 

After  which  Elizabeth  Colegate,  the  widow  of  the  deceased  debtor,  filed  her  peti- 
tion, in  which,  among  other  things,  she  stated,  that  she  then,  12th  May,  1804,  had  a 
quantity  of  wheat  and  rye  growing  on  the  land ;  which  she  had,  by  her  own  personal 
labour  and  the  assistance  of  her  neighbours,  contrived  to  put  in  the  ground  the  then 
last  fall ;  that  she  apprehended  the  trustee  would  sell  her  grain  then  gi-owing,  with 
the  land  ;  whereupon  she  prayed  relief,  &c. 

\2th  May,  1804.— HANso.v,CTance//or.— On  reading  the  petition  of  Elizabeth  Cole- 
gate, the  Chancellor  thinks  proper  to  declare,  that  it  was  not  the  intent  of  his  decree, 
that  the  crop  growing  on  the  land  of  John  Colegate  should  be  sold  with  the  lands ; 
and  that  tlie  trustee  ought  to  announce  to  purchasers,  tliat  tlie  crop  is  excepted.— 
Chancery  Records,  1304,  p.  151. 


366  HOWARD'S  CASE. 

execution  under  which  the  sale  was  made  was  returnable,  is  taken 
to  be  a  sufficient  allowance  of  time  to  provide  for  his  safety. 

It  is  thereupon  Ordered,  that  a  writ  in  the  nature  of  a  writ  of 
habere  facias  possessionem  issue  as  prayed,  according  to  the  pro- 
visions of  the  act  of  Assembly  in  such  case  made  and  provided. 


A  writ  of  habere  facias  possessionem  was  accordingly  issued  and 
a  return  made  upon  it  by  the  sheriff,  that  Mr.  Wills,  as  agent  of 
Campbell  fy  Ritchie,  had  been  put  in  possession. 


HOWARDS  CASE. 

A  direction  by  a  testator  in  his  will,  that  his  estate  shall  be  valued  and  divided  among 
his  devisees  by  persons  to  be  appointed  by  the  Chancellor,  amounts  to  no  more 
than  saying,  that  a  partition  may  be  obtained  by  bill  in  chancery ;  it  cannot  autho- 
rize a  judicial  proceeding  ex  parte  by  any  of  the  devisees. 

The  recommendations  of  the  parties  and  their  solicitors  may  be  heard  as  to  the 
persons  most  suitable  to  be  appointed  commissioners  to  make  partition  of  the  estate. 

George  Howard  and  Benjamin  C.  Howard,  the  sons  and  execu- 
tors of  John  Eager  Howard,  deceased,  by  their  petition,  filed  on 
the  16th  of  November,  1827,  stated,  that  their  father  had,  by  his 
last  will,  made  on  the  9th  of  October,  1827,  devised  his  real  estate 
to  be  divided  among  his  descendants,  as  therein  set  forth ;  that 
they  had  made  some  progress  in  the  payment  of  the  debts  of  the 
deceased ;  and  that  although  they  had  not  fully  satisfied  all  his 
creditors,  yet  as  from  the  great  difficulty  in  making  a  division  of  a 
large  estate,  situated  as  was  that  of  the  deceased,  much  delay  must 
arise,  they  had  deemed  it  advisable  to  apply,  at  once,  for  the 
appointment  of  commissioners,  who  might  commence  immediately 
to  make  the  necessary  preparatory  examinations,  &c.  Whereupon 
they  prayed,  that  commissioners  might  be  appointed,  &c. 

So  much  of  the  will  of  the  late  Johi  Eager  Howard  as  is  mate- 
rial to  this  case,  is  in  these  words :  "  It  is  my  will  and  desire,  that 
all  my  real  estate  which  may  remain  after  the  payment  of  my  debts, 
should  be  valued  by  persons  to  be  appointed  by  the  Chancellor  of 
the  State  of  Maryland  ;  in  which  valuation  shall  be  included  all  the 
real  estate  which  I  may  at  any  time  heretofore  have  conveyed  to 
any  of  my  children  ;  rating  the  same  at  its  present  value,   and 


HOWARD'S  CASE.  3g7 

deducting  therefrom  the  value  of  the  improvements  which  have 
been  made  upon  said  property  during  its  possession  by  my  said 
children,  or  the  possession  of  any  other  person  under  them ;  and 
that  upon  such  valuation,  the  whole  shall  be  divided  by  the  persons 
to  be  named  as  aforesaid,  into  eight  equal  shares  or  parts,  whereof 
each  of  my  children,  viz.  George,  Benjamin  C,  William,  James, 
Sophia  now  Sophia  Read,  and  C/mrles,  is  to  have  one  part,  to 
them  and  their  heirs  for  ever ;  and  my  grandchildren,  John  Eager 
Howard,  the  son  of  my  deceased  son  John,  and  James  Howard 
McHenry,  the  son  of  my  daughter  Juliana  McHenry,  now  deceased, 
one  share  each  to  them  and  their  heirs  for  ever ;  subject,  never- 
theless, as  to  the  two  last  mentioned  devises,  to  the  following 
conditions,  viz.  that  if  either  of  my  said  grandchildren  John  Eager 
Howard,  or  James  Howard  McHenry,  should  die  before  arriving  at 
the  age  of  twenty-one  years,  then  the  share  of  such  grandchild  so 
dying  is  to  go  and  revert  to  such  of  my  children  and  grandchildren 
as  may  be  alive  at  the  death  of  such  grandchild,  in  equal  parts  to 
them  and  their  heirs  for  ever." 

"  In  cases  where  I  may  have  given  bonds  of  conveyance  for 
real  property  which  I  may  have  sold  or  contracted  to  sell,  it  is  my 
will  and  desire,  that  my  executors  should  be,  and  they  hereby  are 
fully  authorized  to  execute  all  necessary  deeds  to  complete  said 
contracts." 

11th  JVovemher,  1827. — Bland,  Chancellor. — It  would  seem, 
that  the  devisees  of  the  residuum  of  the  testator's  real  estate  take 
in  the  manner  and  upon  the  terms  specified,  as  tenants  in  common. 
The  direction,  that  the  Chancellor  shall  appoint  the  persons  to 
make  the  division  among  them,  amounts  to  no  more  than  saying 
what  the  law  had  already  said,  that  a  partition  of  the  estate  so 
devised  might  be  obtained  by  a  bill  in  chancery.  All  concerned 
must  be  brought  before  the  court,  or  have  an  opportunity  of  beino- 
heard ;  from  which  a  majority  of  them  would  be  precluded  by  the 
ex  parte  procedure  proposed  by  this  petition. 

It  may  be  inferred  from  this  petition,  that  the  parties  concerned 
are  anxious  to  have  the  estate  of  the  deceased  finally  settled,  and 
divided  in  the  manner  he  has  directed  by  his  will.  If  so,  a  bill 
embracing  the  whole  subject,  and  asking  a  partition,  is  the  surest, 
cheapest,  and  most  expeditious  mode  of  proceeding  that  can  be 
adopted.  The  defendants  may  answer  at  once,  without  waiting 
to  be  summoned ;  an  account  may  be  taken  if  called  for ;  and  a 
commission  may  issue,  in  the  usual  form,  to  divide  the  residue  of 


368  HOWARD'S  CASE. 

the  real  estate  with  as  little  delay  as  the  nature  of  the  case  may 
require.  This  petition  is  entirely  irregular  and  unsuited  to  what 
appears  to  be  the  object  in  view.  Whereupon  it  is  Ordered,  that 
the  petition  be  and  the  same  is  hereby  dismissed  with  costs. 


Afterwards,  on  the  2d  of  January,  1828,  George  Howard^ 
Benjamin  C.  Howard^  William  Howard,  James  Howard^  Charles 
Howard,  and  James  Howard  McHenry  by  his  guardian  and  next 
friend  Charles  Howard,  filed  their  bill  against  William  George  Read 
and  Sophia  his  wife,  and  John  Eager  Howard,  an  infant,  stating 
that  the  parties  were  the  devisees  of  the  real  estate  of  the  late 
John  Eager  Howard,  as  specified  in  his  will.  Whereupon  the 
plaintiffs  prayed  that  a  partition  thereof  might  be  made  among 
them. 

The  defendants  Read  and  wife  put  in  their  joint  answer,  and  the 
infant  defendant  answered  by  his  guardian.  They  all  admitted  the 
facts  as  set  forth  in  the  bill,  and  united  in  praying  for  a  partition. 
The  plaintiffs  recommended  commissioners  on  their  part,  and  the 
defendants  having  made  a  similar  recommendation  on  their  behalf, 
the  solicitors  of  the  parties  w^ere  heard  as  to  a  proper  selection  from 
the  persons  put  in  nomination ;  and  the  case  was  submitted. 

22d  January,  1828. — Bland,  Chancellor. — The  said  case 
standing  ready  for  hearing,  and  being  submitted,  the  bill,  answer, 
and  all  other  proceedings  were,  by  the  Chancellor,  read  and  con- 
sidered; and  it  appearing  reasonable  and  proper,  that  partition 
should  be  made  of  the  said  real  estate  as  prayed ; — 

It  is  thereupon  Decreed,  that  there  be  a  partition  of  the  real 
estate  w^hereof  the  late  John  Eager  Howard  died  seized,  among  his 
said  devisees,  the  parties  to  this  suit,  in  the  manner  and  upon  the 
principles  prescribed  by  his  last  will  and  testament ;  and  for  that 
purpose,  all  the  real  estate  of  which  the  said  testator  died  seized, 
which  may  remain  after  the  payment  of  his  debts,  shall  be  valued, 
together  with  and  including  all  the  real  estate  which  he  may  have, 
at  any  time  prior  to  the  ninth  day  of  October,  in  the  year  eighteen 
hundred  and  twenty-seven,  conveyed  to  any  of  his  said  children, 
rating  the  same  at  its  present  value,  and  deducting  therefrom  the 
value  of  the  improvements  which  have  been  made  upon  such 
property  during  its  possession  by  said  children ;  or  while  in  the 
possession  of  any  other  person  claiming  under  them ;  and  upon 
such  valuation,  the  whole  shall  be  divided  into  eight  parts.  And 
to  the  end  that  this  court  may  be  enabled  to  make  a  just  valuation 


HOWARD'S  CASE.  359 

and  partition  thereof,  in  the  manner  above  mentioned,  it  is  ordered, 
that  a  commission  issue  to  Joseph  W.  Patterson^  George  Hoffman, 
Solomon  Etting,  James  Mosher,  and  Stewart  Brown,  of  the  city  of 
Baltimore,  authorizing  them,  or  any  three  of  them,  to  go  upon, 
walk  over,  and  survey  the  said  real  estate  and  property  in  the 
proceedings  mentioned,  and  to  value  and  divide  the  same  in  the 
manner  above  mentioned,  according  to  the  rights  and  interests  of 
the  respective  parties ;  that  is  to  say,  the  said  commissioners,  or 
any  three  of  them,  shall  divide  the  same  among  the  said  George 
Howard,  Benjamin  C.  Howard,  William  Howard,  James  Howard, 
Sophia  Read  the  wife  of  William  George  Read,  Charles  Howard, 
James  Howard  McHenry,  and  John  Eager  Hoioard,  who  are  the 
children,  or  grandchildren  and  devisees  of  the  said  testator ;  allot- 
ting to  each  one  of  them  so  much  and  such  a  proportion  of  the 
real  estate  of  which  the  said  testator  died  seized,  as,  together  with 
that  which  the  said  testator  conveyed  to  them,  or  any  of  them,  the 
said  devisees  as  aforesaid,  will  be  equal  in  value  to  one-eighth  part 
of  the  whole  of  the  said  real  estate  herein  directed  to  be  valued, 
having  regard  to  quantity  and  quality,  and  deducting  the  value  of 
improvements  as  above  mentioned.  But  the  said  commissioners 
are  not  to  include  in  the  said  valuation  and  division,  any  real  estate 
of  tlie  said  testator  for  which  he  may  have  given  bonds  of  convey- 
ance, or  which  he  has  sold,  or  contracted  to  sell,  and  for  which  his 
executors  are  authorized  to  execute  all  necessary  deeds  to  complete 
such  contracts  as  are  mentioned  in  his  said  last  will  and  testament. 
And  that  the  said  commissioners  be  directed,  in  the  commission,  to 
make  out  a  plot  and  certificate  of  the  said  real  estate ;  and  of  the 
divisions  thereof,  and  an  accurate  description  of  the  same  and  of 
the  several  parts  thereof,  and  the  value  of  each ;  and  to  the  said 
commission  there  shall  be  annexed,  as  usual,  an  oath  of  office. 


After  which  the  commissioners  made   a  return,  that  they  had 

made  partition  of  the  real  estate  in  pursuance  of  this  decree,  which, 

with  the  consent  of  the  parties,  was  confirmed  by  a  final  decree  in 

the  usual  form,  awarding  to   each  one  of  the  eight  devisees  one 

share  to  be  held  in  severally. 

47 


370  COLEGATE  D.  OWINGS'  CASE. 


COLEGATE  D.  0 WINGS'  CASE. 

A  suit,  which  had  been  instituted  in  the  name  of  a  person  in  her  dotage,  having  beea 
dismissed  by  her  under  the  influence  of  the  defendant,  it  was  reinstated,  and  directed 
to  be  thenceforward  prosecuted  by  her  solicitor  for  her  benefit. 

It  was  ordered  that  she  should  be  permitted  freely  to  go  and  to  reside  where  she 
pleased ;  and  that  if  necessary  a  receiver  might  be  put  upon  the  estate  to  have 
its  rents  and  profits  applied  to  her  maintenance  pending  the  litigation. 

The  maxim  of  the  English  law,  that  no  man  of  full  age  shall  be,  in  any  plea  to  be 
pleaded  by  him,  received  to  stultify  himself  and  disable  his  own  person,  examined, 
considered  and  rejected,  as  being  inconsistent  with  the  principles  of  the  law  of 
Maryland. 

The  indications  and  characteristic  differences  between  the  four  kinds  of  dementia, 
called  idiocy,  delirium,  lunacy,  and  dotage,  as  regarded  by  tlie  medical  profession 
and  as  recognised  by  the  law,  examined  and  considered. 

Weakness  of  mind  is  a  sort  of  mental  imbecility  approaching  to  tlie  condition  of  jjoti 
compos  mentis,  and  analogous  to  childishness  and  dotage. 

Imposition  practised  upon  weakness  by  him  who  is  confided  in  and  trusted  is,  in  law, 
the  most  odious  species  of  fraud. 

Where  a  person  communicates  his  intention  to  make  or  alter  his  will,  so  as  to  give  a 
legacy,  or  a  portion  of  his  property  to  an  individual,  and  his  heir,  or  any  one  else, 
interposes  and  prevents  it  by  a  promise  to  pay  the  legacy,  to  transfer  the  property, 
or  to  give  an  equivalent,  such  promise  is  binding,  and  may  be  enforced  after  the 
death  of  the  testator  or  intestate,  by  the  party  in  whose  favour  the  promise  was  made. 

There  are  various  kinds  of  decrees  other  than  those  which  operate  directly  in  favour 
of  tlie  plaintiff  and  against  the  defendant ;  and  when  the  whole  of  a  complicated 
case  has  been  brought  before  the  court,  such  a  decree  may  be  passed  as  is  best 
suited  to  its  peculiar  nature. 

If  the  conveyance  of  an  estate  be  necessary,  and  the  party  required  to  make  it  be 
incompetent  to  contract,  a  trustee  may  be  appointed  to  execute  the  conveyance  in 
his  name. 

Where  a  decree  has  been  passed  affecting  both  real  and  personal  estate,  and  the  case 
abates  by  the  death  of  either  paity,  for  the  purpose  of  having  the  decree  entirely 
executed,  it  must  be  revived  by  or  against  the  heir,  as  well  as  the  personal  represent- 
ative of  the  deceased  ;  but  it  may  be  partially  revived  by  or  against  either  of  them. 

This  case  was  brought  before  the  court  by  a  bill  filed  by  Colegate 
D.  0 wings  against  Charlotte  C.  D.  Owings,  on  the  21st  May, 
1825,  in  which  the  plaintiff  alleged,  that  she  was  then  more  than 
eighty-four  years  of  age,  and  at  a  time  when  she  was  in  a  condi- 
tion of  extreme  ill  health,  and  altogether  deprived  of  the  proper 
use  of  her  mental  faculties,  the  defendant  had  fraudulently  caused 
her  to  execute  and  deliver  a  deed  dated  on  the  15tli  of  June  1824, 
which  purports  to  be  a  conveyance  from  the  plaintiff  of  all  her 
real  and  personal  estate  to  the  defendant ;  that  the  deed  was  made 
without  any  valuable  consideration  whatever,  upon  the  false  and 
fraudulent  pretext  that  the  plaintiff  had  promised  to  give  by  her 
last  will  and  testament  all  her  estate  to  the  defendant.  Upon  which 


COLEGATE  D.  OWINGS'  CASE.  37I 

the  plaintiff  prayed,  that  the  deed  might  be  annulled  and  cancelled, 
and  tor  general  relief  according  to  the  nature  of  her  case. 

The  defendant  by  her  answer  denied,  that  the  deed  had  been 
fraudulently  or  in  any  manner  improperly  obtained  from  the  plain- 
tiff, and  averred,  that  the  plaintiff,  as  her  mother,  had  promised  to 
her  father,  a  short  time  before  his  death,  to  provide  for  her.  In  con- 
sequence of  which,  and  in  express  reference  to  that  promise,  he  had 
by  his  last  will  given  the  defendant  a  trifling  legacy,  and  so,  in  effect, 
excluded  her  from  all  participation  in  his  estate.  Upon  all  which  the 
defendant  insisted,  that  the  deed  should  be  sustained,  or  that  she 
should  have  secured  to  her  the  full  benefit  of  the  plaintiff's  promise. 

To  this  answer  the  plaintiff  put  in  a  general  replication,  and  a 
commission  was  issued  to  take  testimony ;  but  before  it  was 
returned,  the  plaintiff,  on  the  31st  of  August  1826,  came  from  Bal- 
timore to  Annapolis  w'ith  the  defendant,  and  by  an  order  in  writ- 
ing, signed  by  her,  directed  the  register  to  dismiss  the  bill,  and  it 
was  dismissed  accordingly. 

On  the  6th  of  November,  1826,  the  solicitors  of  the  plaintiff 
filed  their  petition,  in  which  they  stated,  that  although  the  com- 
plainant was  not  a  lunatic,  yet  she  was  incapable  of  transacting 
business  or  disposing  of  her  property ;  and  that  she  had  declared, 
since  her  return  home,  that  she  went  to  Annapolis  with  her  own 
lawyers ;  and  instead  of  dismissing  her  bill,  she  is  under  the 
impression,  that  she  has  got  all  her  property  back,  and  that  the 
deed  to  the  defendant  has  been  set  aside  ;  and  the  plaintiff's  solicit- 
ors further  allege,  that  the  order  for  dismissing  this  suit  had  been 
procured  by  fraudulent  practices  and  undue  influence  upon  the 
plaintiff;  and  in  support  of  their  representation,  they  filed  with  it 
several  affidavits.  Upon  all  which  they  prayed  to  be  heard  ;  that 
the  bill  might  be  reinstated  ;  that  a  guardian  of  the  plaintiff  might 
be  appointed  to  prosecute  the  suit ;  and  that  such  order  might  be 
passed  as  the  nature  of  the  case  should  require. 

21th  JYovember,  1826. — Bland,  Chancellor. — Ordered,  that  this 
application  to  reinstate  the  case  stand  for  hearing  on  the  fourth  day 
of  January  next ; — that  depositions  taken  by  either  party  on  one 
day's  notice  may  be  read  in  evidence  at  the  hearing ; — that  the 
Chancellor  will  at  the  hearing  require  the  personal  presence  of  the 
complainant  for  the  purpose  of  informing  himself  upon  the  siibject 
of  this  application ;  but  he  desires  it  to  be  distinctly  understood, 
that  the  complainant  must  not  be  removed  from  home  so  as  to  sub- 
ject her  to  great  personal  inconvenience,  or  so  as  to  endanger  the 


372  COLEGATE  D.  OWINGS'  CASE. 

health  of  one  so  advanced  in  years,  and  reduced  by  infirmities.  The 
relation  however  in  which  all  the  parties  concerned  stand  to  the 
complainant  will,  it  is  believed,  insure  proper  respect  and  attention 
to  her  personal  comfort  and  security.  And  the  register  is  directed 
to  transmit  a  copy  of  this  order  to  the  solicitor  for  the  defendant. 


The  taking"  of  proofs  and  the  hearing  of  this  matter  were  seve- 
ral times  postponed  at  the  instance  of  the  plaintiff's  solicitors ;  and 
a  further  short  delay  having  been  granted  by  an  order  of  the  29th 
March  1827,  the  matter  was  soon  after  that  brought  before  the  court. 

11th  April,  1827. — Bland,  C'lancellor. — The  matter  of  the 
petition  to  reinstate  this  case  standing  ready  for  hearing,  the  soli- 
citors of  the  parties  were  fully  heard  ;  all  the  proceedings  and 
proofs  were  read  ;  and  the  plaintiff,  Colegate  D.  Owings,  having 
been  brought  into  the  presence  of  the  Chancellor,  he  interrogated 
and  conversed  with  her  as  to  the  subject  in  controversy,  and  also 
on  various  matters  having  a  tendency  toward,  or  connected  with  it. 
All  of  which  the  Chancellor  has  deliberated  upon  and  maturely 
considered. 

'J'he  case  is  of  a  peculiar  and  extraordinary  nature.  It  is  not 
alleged,  nor  does  it  in  any  way  appear,  that  at  the  institution  of 
this  suit  any  thing  was  done  that  ought  not  to  have  been  done ;  or 
that  this  proceeding  was  an  improper  one  with  a  view  to  the  rights 
and  interests  of  the  plaintiff. (a)  A  cloud  has  been  impended  over 
the  title  to  the  property  mentioned  in  the  proceedings,  which 
threatens  to  gather  and  thicken  by  delay.  The  means  of  dispersing 
it,  the  proofs  in  relation  to  the  controversy,  may  be  more  entirely, 
readily,  and  cheaply  obtained  now  than  at  any  future  period  ;  there- 
fore, justice  as  well  as  the  peace  and  interests  of  all  concerned, 
seem  strongly  to  require  that  the  suit  which  had  been  begun  should 
be  reinstated,  and  now  prosecuted  with  as  little  delay  as  may  be  to 
a  final  decision  upon  its  merits,  as  prayed  by  the  petition.(6) 

The  order  for  dismissing  it  was  given  before  the  return  of  the 
commission  for  taking  testimony ;  and,  as  it  would  seem,  before  all 
the  testimony,  pertinent  to  the  matter  and  within  reach  of  the 
parties,  had  been  taken.  For  it  appears,  that  some  of  the  proofs 
collected  under  the  petition  might  be  brought  to  bear  upon  the 
principal  case.     I  therefore  deem  it  improper  at  this  stage  of  the 

(a)  Wartnaby  I'.  Wartnaby,  Jac.  Rop.  377.— (6)  1  Coll.  Idiots,  SO ;  Holinan  >. 
Holinan,  3  Desau.  210. 


COLEGATE  D.  0 WINGS"  CASE.  3-73 

proceedings  more  fully  to  explain  the  reasons  which  have  brought 
me  to  the  conclusion,  that  the  case  should  be  reinstated,  lest,  in  doino- 
so,  I  might  be  supposed  to  intimate  any  opinion  which  should  be 
reserved  until  the  final  hearing. 

It  is  not  my  intention  to  say  any  thing  as  to  the  commencement 
of  the  decline  of  the  mental  energy  of  the  plaintiff;  or  to  speak 
of  the  lucid  intellectual  efforts  she  may  be  now  capable  of  making ; 
but,  although  it  does  not  appear  to  be  altogether  settled  according 
to  the  English  authorities,  that  a  writ  in  the  n^iture  of  a  writ  de 
lunatico  inquirendo  can  be  issued  against  any  one  who  is  merely  in 
a  state  of  dotage,(c)  I  deem  it  proper  to  observe,  that  from  the 
proofs  of  the  present  condition  of  the  plaintifTs  mental  f-iculties,  I 
shall  regard  her  as  completely  under  the  especial  protection  of  the 
court  as  she  can  be,  short  of  her  being  formally  placed  under  its 
guardianship  by  a  regular  course  of  judicial  proceeding. (c?)  I 
shall  expect,  that  she  shall  be  subjected  to  no  manner  of  improper 
restraint,  or  disagreeable  influence,  not  indispensably  necessary  for 
her  welfare.  If  necessary,  and  it  should  be  asked,  the  rents  and 
profits  of  the  property  in  controversy  may  be  applied,  under  the 
direction  of  the  court,  to  her  support  and  benefit,  until  a  final 
decree  can  be  had.  And  as  an  imbecile  adult  may  be  permitted  to 
sue  here  by  his  next  friend,(e)  I  shall  allow  this  suit  to  be  hence- 
forward conducted  by  the  solicitors,  by  wtiom  it  V\MS  instituted,  in 
the  name  of  this  plaintiff;  subject,  however,  to  the  control  of  the 

court,  should  there  be  any  occasion  for  its  interference,  (y") 

.. ^ ^ i __^^ 

(c)  Leving  v.  Caverly,  Prec.  Cha.  229 ;  Wall's  Case,  cited  3  Atk.  173  ;  Ridge- 
way  V.  Darwin,  S  Ves.  66  ;  Ex  parte  Cranmer,  12  Ves.  446  ;  In  re  Holmes,  4  Russ. 
182;  2  Mad.  Chan.  732.— (rf)  Donegal's  Case,  2  Ves.  408;  Wartnaby  v.  Wart- 
naby,  Jac.  Rep.  377 ;  Whitehorn  v.  Hincs,  1  Mun.  557 ;  1  Coll.  Idiots,  65,  67. 
(e)  1  Mont.  Dig.  39. 

(/)  Chambers  v.  Donaldson,  9  East,  471 ;  Horner  r.  Marshall,  5  Mun.  4GG. 

RoTHWELL  V.  BousHELL. — In  this  case  the  bill  stated,  that  John  Boushell  the 
defendant  was  deranged  and  incapable  of  managing  his  affairs,  and  prayed,  that-a 
guardian  ad  litem,  might  be  appointed  to  answer  for  him,  &c.  Aflerivards  the  plain- 
tiff'by  petition  stated,  that  a  writ  de  lunatico  inquirendo  had,  some  time  since,  issued, 
upon  which  it  had  been  found  and  returned,  that  Boushell  was  a  lunatic,  and  that  a 
trustee  had  been  appointed,  who  had  failed  to  give  bond  as  required  ;  whereupon  she 
prayed,  that  a  guardian  ad  litem  might  be  appointed. 

13th  February,  1819. — Kilty,  Chancellor. — On  considering  the  above  petition,  and 
finding  on  examination  of  the  proceedings,  that  a  bond  has  not  been  fded ;  and,  that 
therefore  there  is  not,  in  effect,  any  trustee  capable  of  acting,  it  is  thought  proper, 
and  within  the  powers  of  the  court,  to  appoint  a  guardian  as  prayed.  It  is  therefore 
ordered,  tliat  Thomas  W.  Veasy  be  and  he  is  hereby  appointed  guardian  for  the  pur- 
pose of  answering  for  the  said  John  Boushell  to  the  bill  of  complaint  of  Ann  Roth- 
well  in  the  petition  mentioned. 


374  COLEGATE  D.  OWINGS'  CASE. 

Whereupon  it  is  ordered,  that  the  said  suit  heretofore  instituted 
in  this  court  by  Colegate  D.  Owings  against  Charlotte  C.  D. 
Owvigs,  which  was  dismissed  on  the  31st  day  of  August  last  by 
order  of  the  said  plaintiff,  be  and  the  same  is  hereby  reinstated,  in 
all  respects,  as  it  stood  before  it  was  so  dismissed.  And  it  is 
further  ordered,  that  the  commission  with  the  testimony  taken  under 
it,  which  was  returned  and  filed  on  the  6th  day  of  November  last, 
stand  and  be  available  in  the  said  case,  subject  to  all  legal  excep- 
tions, in  like  manner  as  if  the  same  had  been  returned  and  filed 
before  the  case  had  been  dismissed. 


On  the  23d  of  June  1827,  the  solicitors  of  the  parties  by  a 
writing  signed  and  filed  by  them,  agreed,  that  all  the  testimony 
which  had  been  taken  in  relation  to  the  application  to  reinstate  the 
case  should  be  used  at  the  final  hearing,  in  like  manner  as  if  it  had 
been  taken  under  a  regular  commission. 

After  which  the  plaintiff's  solicitors  filed  a  representation  in 
which  they  say,  that  by  virtue  of  the  order  of  the  17th  of  April, 
they  deem  it  their  duty  to  state,  that  the  plaintiff  had  been  living 
in  peace  and  comfort  with  her  daughter  Mrs.  JVesbif,  and  on  her 
leaving  home  to  go  to  the  springs  for  her  health,  the  plaintiff  had 
gone  to  reside  with  her  daughter  Mrs.  Goodwin,  where  she  had 
every  attention  and  comfort  she  required ;  that  on  the  plaintifPs 
expressing  a  wish  to  attend  a  camp-meeting,  Mrs.  Goodwin  had 
gone  with  her,  but  found  it  necessary  for  the  plaintiff  to  take  shel- 
ter from  a  shower  of  rain,  in  the  house  of  a  neighbour,  when,  in 
the  absence  of  Mrs.  Goodwin,  the  defendant  contrived  in  a  rude 
and  covert  manner  to  have  the  plaintiff  put  into  a  carriage  and 
conveyed  to  the  city  of  Baltimore,  and  there  placed  her,  against 
her  consent,  in  a  boarding-house,  where  she  could  not  have  those 
attentions,  conveniences,  and  comforts  of  which,  from  her  age  and 
infirmities,  she  stood  so  much  in  need ;  that  the  defendant,  inde- 
pendently of  her  want  of  means  properly  to  support  her  mother, 
ought  not,  because  of  this  controversy,  to  have  the  care  of  the 
plaintiff;  and  that  the  real  and  personal  estate  of  the  plaintiff  had 
been  and  was  then  much  neglected  and  exposed  to  waste  and  loss. 
Upon  which  they  suggested,  that  the  person  of  the  plaintiff  should 
be  confided  to  the  care  of  Mr.  and  Mrs.  JYesbit ;  and  that  a  receiver 
should  be  appointed  to  take  care  of  her  estate. 

17//i  Sej)tember,  1827. — Bland,  Chancellor. — The  Chancel- 
lor has  read  and  considered  the  statement  filed   and  submitted 


COLEGATE  D.  OWINGS'  CASE.  375 

this  day  by  Messrs.  Winchester  and  Gwhm,  the  solicitors  of  the 
plaintiff. 

On  passing  the  order  for  reinstating  this  case,  it  seemed  doubt- 
ful whether  the  plaintiff  was  then  in  such  a  state  of  dotage  as  to 
warrant  the  issuing  of  a  writ  de  lunatico  inquirendo.  Such  a  writ 
was  not  asked  for  by  any  one.  The  expression  of  an  opinion  to 
that  extent  therefore,  was  not  then  considered  necessary ;  and  it 
was  deemed  best  to  leave  the  question  as  to  the  commencement 
and  nature  of  her  mental  imbecility,  as  regards  the  matter  in  dis- 
pute, to  be  determined  at  the  final  hearing.  Upon  mature  delibe- 
ration it  seemed  at  that  time,  however,  to  be  within  the  scope  of 
the  powers  of  this  court  to  protect  the  plaintiff,  without  the  inter- 
vention of  a  writ  de  lunatico  inquirendo^  from  all  personal  restraint, 
or  undue  influence  in  any  way,  or  by  any  one ;  and  also,  by  the 
appointment  of  a  receiver,  or  otherwise,  to  protect  the  property  in 
litigation  from  waste,  and  to  have  its  proceeds  applied  to  her  sup- 
port until  the  matter  in  controversy  could  be  heard  and  determined. 
With  a  view  therefore,  as  speedily  as  possible  to  release  this  aged 
plaintiff  from  all  improper  restraint,  and  of  placing  her  in  a  condi- 
tion of  undisturbed  comfort,  and  of  having  the  property  in  dispute 
taken  care  of. 

It  is  ordered,  that  any  two  or  more  of  the  medical  professors  of 
the  University  of  Maryland,  who  have  not  heretofore  expressed 
any  opinion  upon  the  intellectual  condition  of  the  said  plaintiff 
Colegate  D.  Owings,  be  and  they  are  hereby  authorized  and 
requested  to  visit  and  converse  with  her;  and  that  she  be  per- 
mitted without  the  least  molestation  or  undue  persuasion  whatever, 
from  any  one,  forthwith,  or  at  any  time  to  go  to  and  dwell  in  the 
house  of  any  one  willing  to  receive  her,  as  may  be  thought  proper 
or  advisable  by  the  said  physicians,  or  a  majority  of  them.  And 
the  said  physicians  shall  as  soon  as  practicable  make  report  to  this 
court  of  their  proceedings,  and  of  their  opinion  of  the  health  and 
present  intellectual  condition  of  the  said  plaintiff  (g-)  And  it  is 
further  ordered,  that  the  matter  of  the  said  representation  of  the 
said  solicitors  be  finally  heard  and  disposed  of  on  the  twenty-third 
day  of  October  next.  Provided  a  copy  of  this  order,  together  with 
a  copy  of  the  said  representation  be  served  on  the  said  defendant, 
or  her  solicitor,  on  or  before  the  twenty-fourth  instant.  Each  party 


(g)   Ridgeway  v.  Darwin,  8  Ves.  67;  Ex  parte  Tomliiison,  1  Ves.  &  Bea.  59; 
Shelf.  Lun.  62,  390. 


376  COLEGATE  D.  OWINGS'  CASE. 

is  allowed  to  take  depositions  before  any  justice  of  the  peace,  or 
the  commissioners  of  this  court  in  the  city  of  Baltimore,  to  be 
read  in  evidence  at  the  hearing  of  this  matter  on  giving  two  days' 
notice  as  usual. 


Nothino-  havino-  been  done  under  this  order,  the  case  was,  on 
the  28th  November  1827,  ordered  to  stand  for  hearing  at  the  then 
next  December  term,  unless  cause  was  shewn  to  the  contrary ;  and 
no  cause  having  been  shewn,  the  case  was  brought  before  the 
court  for  a  final  decision. 

20th  February,  1828. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing  and  having  been  submitted,  without  argument  or 
notes,  the  proceedings  were  read  and  considered. 

The  bill  charges,  that  the  deed  of  the  15th  of  June  1824,  was 
obtained  by  combination  and  fraud  ;  which  of  itself,  if  true,  would 
afford  a  sufficient  ground  for  the  relief  prayed.  But  this  allegation 
is  especially  bottomed  upon  the  statement,  that  at  the  time  the  deed 
was  executed,  the  plaintiff  had  been  deprived  of  her  intellectual 
faculties  ;  and  that  she  w\as  then  in  truth  entirely  non  compos  men- 
tis ;  either  from  great  age,  or  by  reason  of  the  disorder  under  which 
she  was  then  suffering.  She  makes  her  own  incapacity  the  chief 
basis  of  her  prayer  for  relief.  But,  according  to  a  maxim  of  the 
English  law,  no  man  can  be  allowed  to  stultify  himself  for  the 
purpose  of  avoiding  his  own  deed.(/i)  If  we  are  bound  by  this 
maxim ;  and  it  be  an  established  principle  of  our  law,  it  is  evident, 
that  every  thing  in  this  case,  which  can  be  considered  as  at  vari- 
ance with  it,  must  be  rejected  ;  and  we  must  be  confined  to  that 
alone  which  relates  to  the  allegations  of  fraud,  in  total  exclusion 
of  every  thing  respecting  the  plaintifTs  personal  disability  occa- 
sioned by  her  alleged  insanity. 

The  application  of  this  maxim  to  this  case,  therefore,  meets  us 
here,  as  a  preliminary  inquiry.  Can  the  unfortunate  or  afflicted 
party  himself  make  his  own  insanity  a  .foundation  of  relief  or 
defence?  Is  it  a  principle  or  maxim  of  the  law  of  Maryland, 
"  that  no  man  of  full  age  shall  be,  in  any  plea  to  be  pleaded  by 
him,  received  by  the  law  to  stultify  himself,  and  disable  his  own 
person  ?"(i)  I  have  not  been  able  to  find  any  adjudged  case,  oi- 
other  respectable  authority,  shewing  in  what  manner  this  maxim 
has  been  received  ;  or  whether  it  has  ever  hccw  adopted  or  rejected 

CO  Beverlpy's  Case,  4  Co,'  123.— (i)  Beverley's  Case,  4  Co.  12.3. 


COLEGATE  D.  OWINGS'  CASE.  377 

in  this  Stale.  Therefore,  whether  it  ought  to  be  now  received,  or 
rejected,  must  depend  upon  the  nature  of  the  reasons  and  the  policy 
by  which  it  is  sustained. 

In  England,  it  is  said,  that  the  progress  of  this  notion  is  some- 
what curious ;  and  although  it  has  been  handed  down  as  settled 
law,  yet,  that  later  opinions,  feeling  the  inconvenience  of  the  rule, 
have  in  many  points  endeavoured  to  restrain  it.(y)  This  maxim 
has  received  the  entire  approbation  of  few  of  the  English  lawyers, 
and,  by  many  of  them,  it  has  been  not  only  questioned,  but  severely 
reprobated. (^")  It  is  alleged  to  have  been  set  up  in  defiance  of 
natural  justice  and  the  universal  practice  of  all  the  civilized  nations 
in  the  world. (/)  It  has  been  shewn  fi'om  the  most  unquestionable 
authority,  that  the  ancient  common  law,  without  deviation,  down 
to  about  the  year  1330,  recognised  the  right  of  the  party  himself 
to  rely  upon  and  prove  his  own  insanity  as  a  means  of  avoiding 
any  contract  made  during  his  insanity  ;(?n)  and  in  a  case  which 
was  decided  about  ftie  year  1420,  it  appears  that  the  plaintiff  was 
permitted  to  allege  as  the  ground  of  the  relief  he  asked  and 
obtained,  that  he  was  of  great  age,  and  that  his  discretion 
many  times,  and  for  the  most  part,  had  passed  away  from  him, 
and  that  the  bargain  had  been  made  when  he  was  out  of  him- 
self. (?i)  It  is  said  by  one  of  the  most  eminent  of  the  English 
judges,  sitting  in  an  ecclesiastical  court,  that  it  is  perfectly  clear 
in  law,  that  a  party  may  come  forward  to  maintain  his  own  past 
incapacity,  and  also  that  a  defect  of  incapacity  invalidates  the 
contract  of  marriage,  as  well  as  any  other  contract. (0)  After  the 
most  solemn  and  deliberate  investigation,  this  maxim  has  been 
rejected  in  Connecticut ;  and  in  New  York  and  Virginia  it  seems 
to  have  been  put  aside  as  unworthy  of  the  least  consideration  or 
notice.  (/>) 

Mere  weakness  of  mind  alone,  without  imposition  or  fraud, 
forms  no  ground  for  vacating  a  contract.  But  if  there  be  any 
unfairness  in  the  transaction,  then  the  intellectual  imbecility  of  the 
party  may  be  taken  into  the  estimate,  to  shew  such  fraud  as  will 
afford  a  ground  for  annulling  it.  Courts  of  justice  disclaiming  all 
pretension  to  measure  men's  capacities,  recognise  no  legal  distinc- 

{j)  2  Blac.  Com.  291;  Thompson  v.  Leach,  .3  Mod.  301;  1  Ld.  Raym.  313; 
2  Stra.  1104.— (A-)  1  Coll.  Idiots,  406 ;  Coop.  Med.  Jur.  S77.— (Z)  1  Fonb.  48. 
(m)  F.  N.  B.  466;  1  Pow.  Cont.  Id.— (n)  1  Lond.  Jurist,  340.— (0)  Turner  r, 
Meyers,  1  Hagg.  Con.  Rep.  414. — (  p)  Web.ster  v.  Woodward,  3  Day,  90;  Rice  0. 
Peet,  15  John.  503  ;  Horner  r.  Marshall,  5  Mun.  4CG. 

48 


378  COLEGATE  D.  OWINGS'  CASE. 

tion  but  that  which  is  drawn  between  persons  of  sound  mind,  and 
those  who  are  non  compos  mentis.  All  persons  in  the  former  con- 
dition of  mind,  not  otherwise  disqualified,  may  make  a  valid 
contract ;  but  all  contracts  made  by  those  in  the  latter  situation 
are  deemed  utterly  void.  (5')  And  yet,  according  to  this  maxim,  no 
man  can  be  allowed  to  stultify  himself;  that  is,  to  shew  that  he 
had  not  merely  a  weak  mind,  but  that  he  was  absolutely  non  compos 
mentis.  If  a  man  be  of  ever  so  feeble  a  capacity,  short  of  lunacy, 
he  may  be  allowed  to  prove  that  fact ;  or,  in  other  words,  partially 
to  stultify  himself  in  connexion  with  other  circumstances,  in  order 
to  shew  that  he  had  been  defrauded.  But  if  he  be  absolutely  non 
compos  mentis,  he  shall  not  be  permitted  to  prove  that  fact,  or  to 
stultify  himself  altogetJier ;  although  it  would  seem  to  be  difficult 
to  understand  how  the  obtaining  from  a  lunatic  a  conveyance  of  his 
property,  can  be  otherwise  considered,  than  as  being  in  itself  the 
strongest  and  most  conclusive  evidence  of  fraud.  Hence,  as  it 
would  seem,  if  the  injured  party  should  state,  ftiat  being  of  a  weak 
mind,  he  was  imposed  upon  and  defrauded ;  the  defendant  has 
only  to  prove  an  aggravation  of  his  own  iniquity,  by  shewing  that 
the  plaintiff  was,  in  truth,  at  the  time,  not  merely  weak,  but  actually 
non  compos  mentis,  and  he  may  be  at  once  silenced  by  this  maxim. 
It  is  said,  that  a  man  should  not  be  permitted  to  stultify  himself, 
"  because,  when  he  recovers  his  memory,  he  cannot  know  what 
he  did  wdien  he  was  non  compos  mentis.^^  But  this  cause  of  the 
rule,  as  thus  expressed,  conveys  a  contradiction  in  terms,  a  sole- 
cism in  itself.  A  man  in  madness  is  not  himself;  his  mind  is 
aliened  and  gone ;  the  rational  power  has  left  its  tabernacle,  and  is 
from  home.  It  would  be  just  as  reasonable  to  say,  that  he  who  is 
absent  from  his  dwelling,  should  not  obtain  redress  for  any  injury 
done  to  it  during  his  absence,  because  when  he  returned  home  he 
could  not  know  what  had  been  done  there  while  he  was  abroad ;  as 
that  a  person  should  not  obtain  redress  by  stultifying  himself, 
because  he  could  not  know  what  he  had  done  during  the  time  he 
was  insane.  It  has  been  well  said,  that  he  who  jests  upon  a  man 
who  is  drunk,  injures  the  absent.  But  an  innocent  and  unfortunate 
person  is  much  more  really  and  totally  absent  from  himself  in  his 
madness,  than  a  man  in  his  drunkenness.  (;•) 

(?)  1  Fonb.  66. 

(r)  Dr.  Rush,  in  his  observations  on  the  diseases  of  the  mind,  has  frequent  recur- 
rence to  the  poets  lor  ilhistrations  of  the  nature  of  madness ;  because,  as  he  says, 
tliey  \'iew  the  imman  mind  in  all  its  operations,  whether  natural  or  morbid,  witli  a 


GOLEGATE  D.  OWINGS'  CASE.  379 

It  is  the  special  duty  of  the  State  to  take  care  of  those  who 
suffer  under  any  natural  infirmity  which  incapacitates  them  from 
taking  care  of  themselves.  And,  therefore,  to  adopt  a  maxim 
which  in  its  operation  casts  them  out  from  the  protection  of  the 
law,  of  which  they  stand  so  much  in  need,  and  leaves  them  to  be 
stripped  of  their  property  by  the  most  palpable  fraud,  appears  to 
be  exceedingly  unjust  and  cruel.  The  reason  of  this  maxim  does, 
in  effect,  declare,  that  the  unfortunate  are  to  be  left  unprotected, 
because  they  are  unfortunate ;  that  no  care  is  to  be  taken  of  an 
innocent  lunatic,  because,  being  a  lunatic,  he  knows  not  what  he 
does,  and  cannot  take  care  of  himself.  While  on  the  other  hand, 
it  virtually  proclaims,  that  iniquity  shall  be  protected,  and  that  the 
defrauder  shall  be  allowed  to  profit  by  his  own  wrong,  and  to  enjoy 
his  plunder  in  perfect  security. 

It  is  said,  that  "  if  the  common  law  had  given  a  writ  of  non 
compos  mentis  to  him  who  has  recovered  his  memory  after  aliena- 
tion, certainly  the  law  would  have  given  him  remedy  for  the  Main- 
tenance of  himself,  his  wife,  children  and  family,  although  he 
recovered  not  his  memory  but  continued  non  compos  mentis.^\s)  I 
do  not  clearly  see  the  force  of  this  inference ;  but  it  would  seem, 
from  what  is  said,  that  because  a  man  cannot  have  a  deed  set  aside 


microscopic  eye ;  and  hence  many  things  arrest  their  attention,  which  escape  the 
notice  of  physicians.— (i?!/sA  on  the  Mind,  1.5S.)  Shakspeare  has  been  frequently 
referred  to  by  writers  on  the  subject  of  mental  disorder. — (  Conolhj  Ind.  Inst.  319; 
Coop.  Med.  Jur.  291 ;  1  Paris  ajid  Fonb.  316,  note.)  Justinian  quotes  a  passage  from 
Homer  to  illustrate  the  nature  of  a  donation  mortis  causa,  (lib.  2,  tit.  7,  s.  1,)  and 
Lord  Coke  allows,  that  to  cite  verses  standeth  well  with  the  gravitie  of  our  lawyers. 
{Co.  Lilt.  237.)  I  shall  therefore  feel  myself  justified  in  placing  among  the  references 
some  extracts  from  the  poets,  by  way  of  illustration  and  in  support  of  what  I  have 
said,  in  the  text : 

"  Poor  Ophelia, 


Divided  from  herself  and  her  fair  judgment, 

Without  the  which,  we  are  pictures,  or  mere  beasts."      Hamlet,  act  4,  s.  5. 
"If  Hamlet  from  himself  be  ta'en  away, 
And,  when  he's  not  himself,  does  wrong  Laertes, 
Then  Hamlet  does  it  not,  Hamletdenies  it. 
Who  does  it  then  ?  His  madness."  Hamlet,  act  5,  s.  2. 

By  the  statute  of  33  Hen.  8,  c.  20,  a  person  who  had,  while  sane,  committed  high 
treason,  and  after  became  mad,  might  be  tried  in  his  absence,  without  making  his 
personal  appearance,  &c.  From  which  it  may  be  inferred,  that  by  a  legal  appearance 
at  the  trial,  in  criminal  cases,  is  meant  the  actual  presence  of  the  mind  as  well  as  the 
body;  thus  recognising  the  position,  that  in  a  state  of  insanity  the  mind  has  left  the 
body,  and  cannot  be  brought  before  the  court  with  it.— 4  Blac.  Com.  25. 

(s)  Beverley's  Case,  4  Co.  124. 


380  COLEGATE  D.  OWINGS'  CASE. 

in  order  to  recover  his  property,  he  is  therefore  utterly -without 
remedy  for  the  maintenance  of  himself  and  family  during  the  con- 
tinuance of  his  insanity. 

This  however  is  not  altogether  correct.  A  right  of  property 
necessarily  implies,  that  its  owner  has  a  remedy  for  the  recovery  of 
it ;  ahd  also,  that  he  is  invested  with  the  means  of  protection  in 
the  enjoyment  of  such  property  as  the  law  allows  him  to  dispose 
of  without  any  other  limit  than  that  in  doing  so  he  shall  not  injure 
his  fellow  citizen.  But  if  the  owner  has  a  wife  and  children  he  is 
bound  to  maintain  them,  at  least  so  far  as  his  property  affords  him 
the  means.  This  maxim  applies  only  to  the  contracts  of  the 
lunatic  ;  it  does  not  prevent  him  from  vindicating  his  right  to  his 
property  by  an  action  of  ejectment,  trespass,  trover,  &c.(i)  nor 
does  it  release  him  from  any  obligation,  which  his  property  will 
enable  him  to  discharge.  Novv^  it  is  in  execution  of  this  his  own 
right,  and  in  fulfilment  of  this  his  duty  to  his  family,  that  the 
Court  of  CJiancery  has  always  acted,  in  taking  care  of  persons 
who  are  non  compos  mentis,  and  their  estates.  For  the  court  is 
bound,  in  behalf  of  the  State,  to  keep  the  lunatic,  his  wife,  chil- 
dren and  household  with  the  profits  of  his  lands  and  estate,  and  to 
apply  the  whole  to  their  use  ;  although  he  recovers  not  his  memory, 
but  continues  non  compos  mentis.{xi) 

But  we  are  told,  that  although  the  lunatic  himself  may  be  fet- 
tered by  this  maxim,  yet  there  is  a  mode  in  vvdiich  he  may  obtain 
redress  ;  and  that  his  heirs  and  personal  representatives  are  not 
bound  by  this  maxim.  A  commission  of  lunacy  may  be  taken 
out,  he  may  be  declared  a  lunatic,  and  a  committee  appointed  to 
take  charge  of  his  person  and  estate ;  and  such  committee  may 
sue  and  have  any  deed,  made  by  the  lunatic,  during  his  insanity, 
vacated  for  his  benefit.  But  why  this  circuity  ?  The  issue  joined 
between  the  committee  of  the  lunatic  and  his  grantee  must  be 
exactly  the  same,  and  it  must  be  met  by  precisely  the  same  proof 
as  if  the  lunatic  himself  had  been  the  party.  But  even  this  cir- 
cuitous mode  of  redress,  is  often  lame,  tardy,  or  wholly  inefficient. 
It  is,  however,  better  than  none  at  all. 

But  if  a  lunatic,  in  the  condition  of  having  been  defrauded  of 
his  property,  should  recover  his  reason,  then  there  is  an  end  even 
of  this  circuitous  remedy.  He  is  discharged  from  the  government 
and  protection  of  his  committee,  and  left  to  regain  his  property  as 

(/)  '■i  Bac.  Abr.  5-il.— (u)  Beverley's  Case,  4  Co.  127. 


COLEGATE  D.  OWINGS'  CASE.  381 

he  can  ;  taking  care,  however,  that  he  does  not  allege  his  own  for- 
mer insanity  as  a  ground  for  vacating  any  contract  by  which  he 
may  have  been  defrauded  of  it.  Hence  as  regards  his  property, 
the  recovery  of  his  reason,  instead  of  being  a  blessing,  may  be  his 
greatest  misfortune  ;  for  he  may,  notwithstanding  he  is  in  fact  the 
owner  of  a  large  estate,  be  by  the  operation  of  this  maxim,  fixed 
in  penury  during  the  remainder  of  his  days.  The  granting  of  a 
commission  of  lunacy  it  is  said,  is  a  matter  not  of  right  but  of 
sound  discretion  under  all  circumstances. (v)  But  if  this  maxim 
prevails  it  should  be  held  to  be  a  matter  of  right,  since  it  may  be 
often  indispensably  necessary  as  the  only  means  by  w^hich  a  lunatic 
can  obtain  justice. 

The  heirs  and  personal  representatives  of  the  lunatic  are,  how- 
ever, not  restrained  by  this  maxim.  They  may  obtain  the  redress 
which  has  been  denied  to  him.  The  heir  may  recover  the  impe- 
rishable realty  ;  but  of  wdiom  is  reimbursement  to  be  obtained  for 
the  years  of  waste  and  devastation  that  may  have  been  committed 
upon  it  during  the  life  of  the  lunatic  ?  The  only  remedy  against  the 
wrongdoer,  in  its  best  form,  is  a  mere  personal  claim  for  an 
account  of  the  rents  and  profits ;  but  he  may  be  a  beggar.  The 
administrator  of  the  lunatic  may  reclaim  his  personal  property 
itself,  if  to  be  found ;  or  if  not,  he  may  sue  for  its  value,  if  the 
wrongdoer  can  be  found ;  and  recover  from  him  its  full  value,  if 
he  should  be  worth  as  much.  He  who  delays  to  pay  what  is  due, 
pays  less  than  is  due ;  but  suspended  and  indefinitely  deferred  jus- 
tice is  a  tantalizing  pernicious  mockery.  It  appears  to  be  most 
extraordinary,  that  any  code  of  laws  should  recognise  a  case  in 
which  the  existence  of  a  wrong  is  admitted,  and  the  redress  for  it 
is  postponed  until  after  the  death  of  the  injured  individual. (w) 

There  is,  however,  one  highly  respectable  English  lawyer  wdio 
has  attempted  to  vindicate  this  maxim.  "  Insanity,"  says  he, 
"  being  a  quality  annexed  to  the  mind  of  the  party  who  is  subject 
to  it,  is  a  conclusion  upon  his  state  of  mind  to  be  drawn  only  from 
his  own  actions.  A  person  therefore  may  assume  this  disability, 
whereas  he  cannot  feign  infancy  and  duress,  the  proof  not  origi- 
nating in  himself  and  his  actions,  but  subsisting  independently. 
That  being  the  case,  the  law  (w^hich  is  anxious  to  provide  against 
the  possibility  of  committing  fraud,  at  the  same  time  that  it  pro- 
vides for  the  protection  of  rights,)  removes  the  temptation  to  prac- 

(d)  1  Coll.  Idiots,  67 ;  Rebecca  Owings'  Case,  ante,  290.— (w;)  Shelf.  Lun.  53. 


382  COLEGATE  D.  OWINGS'  CASE. 

tise  the  former,  by  prohibiting  every  man  from  setting  aside  his 
own  deliberate  acts  by  stultifying  himself,  although  it  furnishes  a 
means  by  which  his  heirs,  after  his  death,  or  his  friends,  whilst  he 
is  living,  may  avail  themselves  of  this  disability.  And  it  is  to  be 
observed,  that  the  law  in  these  cases  does  not  proceed  upon  the 
ground,  that  the  party  is  bound ;  for  that  cannot  be,  seeing  that, 
by  the  law  of  nature,  he  wants  the  capacity  to  assent  to  a  contract ; 
but  because  the  policy  of  the  law,  which  rather  submits  to  particu- 
lar mischief  than  a  public  inconvenience,  sets  bounds  to  the  law  of 
nature  in  point  of  form  and  circumstance. "(z) 

The  argument,  here  derived  from  considerations  of  public  policy, 
results  in  this ;  that  a  greater  amount  of  fraud  and  injustice  would 
be  likely  to  ensue  by  allowing  men  to  stultify  themselves,  in  order 
to  avoid  their  contracts,  than  by  refusing  them  permission  to  do  so 
for  that  purpose.  And  this  position  is  founded  on  an  assumption 
of  the  fact,  that  it  is  exceedingly  easy  to  counterfeit  madness 
without  being  detected ;  or  that  of  those  who  do  deceitfully  pre- 
tend to  be  insane  the  far  greater  number  escape  detection ;  and 
consequently,  but  for  this  maxim  the  appearance  of  lunacy  would 
be  very  frequently  put  on,  for  the  purpose  of  practising  imposition 
and  fraud.  The  position  however,  is  not  sustained  by  the  fact.  It 
is  incumbent  upon  those  who  advance  this  argument  to  shew,  that 
instances  of  feigned  madness  are  common  ;  and  also  that  in  those 
instances  the  detection  of  the  deceit  has  been  rare  or  difficult.  In 
criminal  cases,  to  defeat  the  progress  of  justice,  and  under  various 
circumstances  to  escape  from  oppression  or  some  imminent  peril, 
the  artifice  of  counterfeiting  madness  has  often  been  resorted  to ; 
but  no  instances  of  fraud  in  civil  cases,  perpetrated  by  means  of 
pretended  lunacy,  have  been  adduced,  and  I  know  of  none. (3/) 


(x)  1  Pow.  Cont.  20. 

(y)  The  following  observations  of  Messrs.  Paris  and  Fonblanquc,  in  their  excellent 
work  on  Medical  Jurisprudence,  arc  well  worthy  of  attention  :  "  There  are  (say  they) 
several  objects,  for  the  accomplishment  of  which  persons  are  induced  to  simulate  the 
existence  of  disease — such  as,  for  obtaining  military  exemptions  and  discharges ;  or 
certain  civil  disqualifications ;  for  the  purpose  of  deriving  parochial  relief,  or  pecuniary 
assistance  from  benefit  societies  ;  or  the  comfortable  .shelter  and  retreat  of  an  hospital; 
for  exciting  compassion  and  obtaining  alms ;  for  creating  public  interest  and  curiosity ; 
for  procuring  a  release  from  confinement  or  exemption  from  puni.shment ;  and,  lastly, 
for  the  dishonest  intention  of  recovering  unjust  compensation  from  some  person 
selected  for  accusation,  as  the  author  of  the  pretended  calamity." 

"  The  diseases  which  have  been  selected  for  the  accomplishment  of  any  of  the 
purposes  above  enumerated  are  extremely  numerous,  although  there  are  some  few 
which  may  be  said  to  be  more  generally  preferred  on  such  occasions.     In  general. 


COLEGATE  D.  OWIxNGS'  CASE.  333 

The  doubtful  and  uncertain  point  at  which  reason  disappears, 
and  where  incapacity  becomes  evident  and  manifest,  can  only  be 
fixed  by  the  particular  circumstances  of  each  particular  case.  And 
it  must  be  admitted  to  be  difficult  to  lay  down,  with  any  thing  like 
positive  precision,  any  rules  by  which  the  sanity  of  the  mind  can 
be  tried.  Insanity  is,  however,  a  fact ;  and  like  eveiy  other  fact, 
upon  which  the  rights  of  persons  or  of  property  may  depend,  must 
be  established  by  proof  clear,  strong,  and  demonstrative,  (c:)  In 
cases  of  this  sort,  the  evidence  of  medical  men  is,  in  general, 
produced ;  and,  in  proportion  to  the  great  improvements  in  that 
branch  of  science,  such  evidence  is  now  more  than  ever  to  be 
relied  upon,  (a)  I  therefore  deem  it  a  sufficient  answer  to  this 
argument,  derived  from  considerations  of  public  policy,  to  deny 
the  trudi  of  the  fact  upon  which  it  is  based ;  and  to  rely  upon 
the  circumstance,  that  if  there  ever  had  been  any  such  foundation 
for  it,  we  should  not,  at  this  day,  be  at  a  loss  to  find  any  clear 
evidence  of  those  facts  in  any  foreign,  code,  or  in  the  innumer- 

tlie  medical  inquirer  will  not  have  much  difficulty  in  detecting  such  impostors ; 
although  there  aie  cases  where  the  investigation  becomes  a  subject  of  extreme 
delicacy  and  importance,  as  in  those  persons  reporting  themselves  sick  and  unfit  for 
military  ser\ice,  or  malingerers,  as  they  are  technically  called." 

"  Insanity  has  in  all  ages  been  feigned  for  the  accomplishment  of  particular  objects ; 
we  read  of  its  having  been  thus  simulated  by  David,  Ulysses,  and  Lucius  Brutus. 
In  general,  the  detection  of  such  an  imposition  will  not  be  difficult ;  the  feigned 
mjmiac  never  wiUingly  looks  his  examiner  in  the  face,  and  if  his  eyes  can  be  fixed, 
the  change  in  his  countenance,  on  being  accused,  vrHl  be  strongly  indicative  of  hia 
real  state  of  mind.  It  is,  moreover,  very  difficult  to  imitate  the  habits  of  a  lunatic 
for  any  length  of  time,  and  to  forego  sleep.  An  insane  person  generally  sleeps  but 
little,  and  talks  much  during  the  night;  but  the  pretender,  if  he  thinks  he  is  not 
watched,  will  sleep,  and  only  act  his  part  when  he  believes  his  conduct  to  be 
observed."—! Par. k. Fonb. 335,359 ;  3 ibid.X^l ;  1  Hale,  P. C. 33, 35 ;  1  Hawk. P.C.2; 
3  Inst.  6;  4  Co.  124;  Coop.  Med.  Jur.  266,  322;  Rv^h  on  the  Mind,  IS,  216;  1  Sam. 
21,  V.  13;  Con.  Insa.   Ado  ;  Shelf.  Liin.  69. 

It  appears  fi-om  the  circumstances  related  by  Messrs.  Paris  and  Fonblanque,  that 
durino-  the  wars  arising  out  of  the  French  Revolution,  the  French  and  English 
surgeons  became  exceedingly  sldlful  in  detecting  recruits  in  their  attempts  to  escape 
from  service  in  the  army  or  na%-y  by  feigned  diseases.  But  in  all  ages,  under  arbi- 
trarj'  or  corrupt  governments,  it  has  been  common  to  endeavour  to  defeat  oppression 
by  fraud ;  and  w^here  that  has  failed,  or  could  not  be  successfully  practised,  there 
have  been  frequent  instances,  in  which  the  individual  has  voluntarily  maimed  and 
disabled  himself  from  being  made  an  instrument  in  the  hands  of  his  oppressor. — 
Gibbon,  D.  ^  F.  chap.  17 ;  Co.  Lilt.  127 ;  2  Diver.  Pur.  21.  But  no  instance  ig 
mentioned  by  Messrs.  Paris  and  Fonblanque,  nor  have  I  any  where  met  with  any 
allusion  to  a  case  where  a  party  feigned  insanity  as  a  means  of  evading  the  obligation 
of  his  contract. 

(s)  Attorney  General  v.  Parnther,  3  Bro.  C.  C.  441. — (a)  Sherwood  v.  Sanderson, 
19  Ves.  286;  1  Pari.  &  Fonb.  315 ;  Shelf.  Lun.  70. 


384  COLEGATE  D.  OWINGS'  CASE. 

able  English  reported  adjudications  in  relation  to  the  subject  of 
insanity. 

It  is  admitted,  that  many  of  the  wise  and  sound  maxims  of  the 
law  are  founded  on  considerations  of  public  policy.  But  it  by  no 
means  follows,  that  they  are  each  of  them  similar  and  in  principle 
alike ;  or  that  they  do,  in  any  respect,  sustain  each  other  by 
analogy.  Upon  considerations  of  public  polic}'-,  the  law  will  not 
permit  the  verity  of  certain  public  acts  and  judicial  records  to  be 
called  in  question ;  but  the  foundation  of  that  rule,  it  is  evident,  is 
very  different ; — indeed  it  is  admitted  to  be  directly  contrary  from 
that  of  this  maxim,  in  relation  to  contracts. (6) 

Upon  the  whole,  I  am  clearly  of  opinion,  that  this  English  rule, 
which  declares,  that  a  man  shall  not  stultify  himself  by  his  own 
plea,  never  has  been,  and  ought  not  to  be  considered  as  a  part  of 
the  law  of  Maryland.  And  having  thus  disposed  of  this  prelim- 
inary point,  upon  the  determination  of  which  the  nature  of  the 
further  investigation  of  this  case  so  essentially  depended,  I  feel 
myself  now  at  liberty  to  take  every  view  of  it  which  the  pleadings 
and  proofs  will  warrant ;  and  to  dispose  of  it  upon  the  established 
rules  of  equity,  and  the  broad  principles  of  natural  justice ;  and 
shall  proceed  accordingly.  - 

Before  I  go  into  an  examination  of  the  proofs,  it  seems  to  be 
proper  that  something  should  be  said  respecting  the  general  nature 
of  insanity,  or  that  unsound  condition  of  the  human  mind,  to  which 
so  large  a  portion  of  the  testimony  relates  ;  and,  upon  a  just  con- 
ception of  which  inhrmity,  a  correct  determination  of  this  case  so 
mainly  depends.  "  Madness,"  says  Sir  William  Scotty  "  is  a  state 
of  mind  not  easily  reducible  to  correct  delinitlon,  since  it  is  the 
disorder  of  that  faculty  with  which  we  are  little  acquainted  ;  for  all 
the  study  of  mankind  has  made  but  a  very  moderate  progress  in 
investigating  the  texture  of  the  mind,  even  in  a  sound  state. 
In  disease,  where  it  has  pleased  the  Almighty  to  envelope  the 
subject  matter  in  the  darkness  of  disease,  it  will  probably  always 
continue  so  ;  but  the  effects  of  this  disordered  state  are  pretty  well 
known.  We  learn  from  experience  and  observation  all  that  we 
can  know,*and  we  see  that  madness  may  subsist  in  various  degrees, 
sometimes  slight,  as  partaking  rather  of  disposition  or  humour, 
which  willnot  incapacitate  a  man  from  managing  his  own  affairs, 
or  making  a  valid  contract.     It  must  be  something  more  than  this  ; 

(6)  1  Povv.  Cont.  22. 


eOLEGATE  D.  OWINGS'  CASE.  385 

something  which,  if  there  be  any  test,  is  held  by  the  common 
judgment  of  mankind,  to  affect  his  general  fitness  to  be  trusted 
with  the  management  of  himself  and  his  own  concerns.  The  degree 
of  proof  must  be  still  stronger,  when  a  person  brings  a  suit  on 
allegation  of  his  own  incapacity,  by  exposing  to  view  the  changes 
of  his  mind. "(c)  And  an  eminent  physician,  in  "  An  Inquiry  con- 
cerning the  Indications  of  Insanity,"  observes,  that  "the  same 
intellectual  light  may  be  given  to  all ;  but  in  some  obscured  by  a 
gross  organization,  and  in  others,  more  happily  organized,  shining 
forth  more  brightly.  Itself  out  of  the  reach  of  physical  injury,  it 
works  by  physical  instruments  ;  and  the  exactness  of  its  operations 
depends  on  the  growth,  maturity,  integrity,  and  vigour  of  its  instru- 
ments, which  are  the  brain  and  nervous  system.  If  the  nervous 
agents  of  sensation  are  unfaithful,  the  mind  receives  false  intelli- 
gence, or  transmits  its  orders  by  imbecile  messengers  :  if  the  seat 
of  thought,  the  centre  of  intellectual  and  moral  government,  is 
faultily  arranged ;  the  operations  of  the  understanding  are  impeded 
and  incomplete.  Nay,  so  dependent  is  the  immaterial  soul  upon 
the  material  organs,  both  for  what  it  receives  and  what  it  transmits, 
that  a  slight  disorder  in  the  circulation  of  the  blood  through  dif- 
ferent portions  of  nervous  substance,  can  disturb  all  sensation,  all 
emotion,  all  relation  with  the  external  and  the  living  world  ;  can 
obstruct  attention  and  comparison,  can  injure  and  confound  the 
accumulations  in  the  memory,  or  modify  the  suggestions  of  imagi- 
nation."(c?) 

The  plaintiff  has  been  subject  to  attacks  from  a  disorder,  that 
has  repeatedly  darkened  her  understanding  with  delirium ;  the 
proofs  exhibit  some  of  her  conduct  as  indicative  of  lunacy ;  and 
that  dotage,  or  intellectual  weakness,  which  the  bill  represents  to 
be  her  present  condition,  is  a  species  of  insanity  which  does  not 
appear  to  have  been  very  attentively  considered,  either  by  the  pro- 
fession of  medicine  or  of  the  law.  Its  approaches  are  most  com- 
monly so  gradual  as  to  be  for  some  time  imperceptible,  and  the 
early  evidences  of  it  are  almost  always  exceedingly  equivocal. 
Under  the  generic  legal  term,  non  compos  m£ntis,  is  comprehended 
every  species  of  mental  derangement  which  incapacitates  a  man 
from  assenting  to,  or  making  a  legal  contract.  But,  for  the  purpose 
of  obtaining  as  clear  a  view  as  may  be  of  a  subject  so  obscure, 
and  without  placing  too  much  reliance  upon  any  general  definitions. 


(c)Tiuner  i:  Meyers,  1  Hagg.  Cons.  Rep.  414.— (c?)  Conolly  Ind.  Ins.  62. 

49 


386  COLEGATE  D.  OWINGS'  CASE. 

I  shall  follow  what  appear  to  be  the  substantial  distinctions  marked 
by  external  indications,  and  recognised  by  our  law  as  manifested 
in  idiocy,  delirium,  lunacy,  and  dotage. (e) 

Idiocy  is  that  condition  in  which  the  human  creature  has  never 
had,  from  birth,  any  the  least  glimmering  of  reason ;  and  is  utterly 
destitute  of  all  those  intellectual  faculties  by  which  man,  in  general, 
is  so  eminently  and  peculiarly  distinguished.  It  is  not  the  con- 
dition of  a  deranged  mind ;  but  that  of  a  total  absence  of  all  mind. 
Hence  this  state  of  fatuity  can  rarely  or  ever  be  mistaken  by  any, 
the  most  superficial,  observer.  The  medical  profession  seem  to 
regard  it  as  a  natural  defect,  not  as  a  disease  in  itself,  or  as  the 
result  of  any  disorder.  In  law,  it  is  also  considered  as  a  defect, 
and  as  a  permanent  and  hopeless  incapacity.  (/') 

Delirium  is  that  state  of  the  mind  in  which  it  acts  without  being 
directed  by  the  power  of  volition,  which  is  wholly  or  partially 
suspended.  This  happens  most  perfectly  in  dreams.  But  what  is 
commonly  called  delirium,  is  always  preceded  or  attended  by  a 
feverish  and  highly  diseased  state  of  the  body.  The  patient  in 
delirium  is  wholly  unconscious  of  surrounding  objects ;  or  con- 
ceives them  to  be  different  from  what  they  really  are.  His  thoughts 
seem  to  drift  about ;  wilderinof  and  tossins;  amidst  distracted  dreams. 
And  his  observations,  when  he  makes  any,  as  often  happens,  are 
wild  and  incoherent ;  or,  from  excess  of  pain,  he  sinks  into  a  low 
muttering,  or  silent  and  death-like  stupor. (g-)  The  law  contem- 
plates this  species  of  mental  derangement  as  an  intellectual  eclipse  ; 
as  a  darkness  occasioned  by  a  cloud  of  disease  passing  over  the 
mind ;  and  which  must  soon  terminate  in  health  or  in  death. (A) 

Lunacy  is  that  condition  or  habit  in  which  the  mind  is  directed 
by  the  will,  but  is  wholly  or  partially  misguided,  or  erroneously 
governed  by  it ;  or  it  is  the  impainnent  of  any  one  or  more  of  the 
faculties  of  the  mind,  accompanied  with,  or  inducing  a  defect  in 
the  comparing  faculty.  For,  as  has  been  observed  by  a  great 
philosopher,  those  who  either  perceive  but  dully,  or  retain  the  ideas 
that  come  into  their  minds  but  ill,  who  cannot  readily  excite  or 
compound  them,  will  have  little  matter  to  think  on.  Those  who 
cannot  distinguish,  compare,  and  abstract,  would  hardly  be  able  to 

(e)  1  Par.  &  Fonb.  307  ;  Rush  on  the  Mind,  234 ;  Shelf.  Lun.  intro.  s.  2.— (/)  1  Par. 
k.  Fonb.  2S9,  308  ;  Rush  on  the  Mind,  292 ;  Co.  Litt.  246  ;  1  Hawk.  P.  C.  2,  note ; 
Donegal's  case,  2  Yes.  40S.— (g)  2  Zoonoinia,  C.  2,  1,  7;  Rees'  Cyclo.  ver.  Deli- 
rinm;  Rush  on  the  Mind,  9,  298;  1  Par.  &.  Fonb.  300.— (A J  1  Coll.  Idiots,  7,  405; 
1  Fonb.  63  ;  Shelf.  Lun.  43  ;  Brogden  v.  Brown,  2  Add.  Eccl.  Rep.  441. 


COLEGATE  D.  OWINGS'  CASE.  387 

understand  and  make  use  of  language ;  or  judge  or  reason  to  any 
tolerable  degree  ;  but  only  a  little  and  imperfectly  about  things 
present  and  very  familiar  to  their  senses.  The  defect  in  idiots 
seems  to  proceed  from  want  of  quickness,  activity,  and  motion  in 
the  intellectual  faculties,  whereby  they  are  deprived  of  reason ; 
whereas  madmen  seem  to  suffer  by  the  other  extreme  :  for  they  do 
not  appear  to  have  lost  the  faculty  of  reasoning,  but  having  joined 
together  some  ideas  very  wrongly,  they  mistake  them  for  truths, 
and  they  err  as  men  do  who  argue  right  from  wrong  principles. 
For,  by  the  violence  of  their  imaginations,  having  taken  their  fancies 
for  realities,  they  make  right  deductions  from  them.  In  short, 
madmen  put  wrong  ideas  together,  and  so  make  wrong  proposi- 
tions, but  argue  and  reason  right  from  them ;  but  idiots  make  very 
few  or  no  propositions,  and  reason  scarce  at  all.  The  erroneous 
perception  of  some  of  the  mental  faculties,  uncontrolled  by  its 
comparing  faculty,  often  becomes  exceedingly  extravagant,  and 
extends  to  the  whole  conduct  of  the  indi\-idual.  .  In  such  cases, 
lunacy  is  so  strongly  marked  as  to  be  obvious  at  first  sight,  or  upon 
a  single  interview  with  the  unhappy  sufferer.  The  most  strange, 
whimsical,  and  incongruous  associations  are  made  of  thoughts  and 
objects  ;  matter  and  impertinency  are  mixed ;  and  the  mind  is 
involved  in  the  most  obstinate  and  unaccountable  mistakes.  During 
these  hallucinations,  however,  the  perceptions  seem  to  be,  in  many 
respects  quickened,  and  the  maniac  becomes  exceedingly  suspi- 
cious, watchful,  cunning,  and  adroit. (z) 


(i)  1  Zoonomia,  sec.  34,  2,  1 ;  2  ibid.  Cla.  3,  1,  2;  Rees'  Cyclo.  ver.  Mental 
Derangement;  Locke  Hum.  Und.  b.  2,  c.  11,  s.  12  &  13;  Con.  Ind.  Insanity,  114, 
300 ;  1  Coll.  Id.  8,  36  ;  1  Par.  &  Fonb.  302,  311,  318  ;  Rush  Mind,  72, 133,  14,  257 ; 
Shelf.  Lun.  cha.  3. 

"  Oh  matter  and  impertinency  mixt ! 

Reason  in  madness !"  Lear,  act  4,  s.  6. 

"  My  pulse,  as  yours,  doth  temperately  keep  time. 

And  makes  as  healthful  music  :  It  is  not  madness, 

That  I  have  utter'd :  bring  me  to  the  test, 

And  I  the  matter  will  reword;  which  madness 

Would  gambol  from."  Hamlet,  act  3,  s.  4. 

Sir  Henry  Halford,  a  celebrated  English  physician,  relates  an  instance  in  which 
this  test,  appealed  to  by  Hamlet,  was  applied  to  a  patient' of  his,  who  desired  to  make 
his  will.  The  sick  man  was  requested  to  give  directions  how  his  will  should  be 
made,  and  it  was  accordingly  drawn,  read  to,  and  signed  by  him  ;  but  being  suspected 
to  be  of  unsound  mind,  after  a  short  interv-al,  he  was  requested  to  repeat  the  direc- 
tions he  had  given,  "  to  reword  the  matter,"  but  in  endeavouring  to  do  so,  his  mind 
gambolled  from  it,  and  wandered  so  materially  from  his  first  directions,  that  he  was 


388  COLEGATE  D.  OWINGS'  CASE. 

It  very  commonly  happens,  however,  that  the  derangement  of 
the  mental  faculties  is  confined  to  some  particular  idea  or  object  of 
desire  or  aversion.  The  idea  or  object  thus  erroneously  contem- 
plated, is  usually  and  not  inaptly  called  the  mad  point ;  and  hence 
this  species  of  insanity  has  been  denominated  monomania.  (J)  In  cases 
of  this  kind,  which  may  be  adduced  as  a  ground  for  relief  or  defence 
in  any  judicial  controversy,  it  should  appear  that  the  morbid  image 
in  the  mind  of  the  patient  has  been  connected  by  him  with,  and 
has  perverted  his  judgment  in  relation  to  those  of  his  acts  which 
are  drawn  in  question.  (A;)  And  as  in  monomania,  there  are  whole 
classes  of  subjects  as  to  which  the  intellectual  faculties  of  the 
patient  may  be  entirely  trustworthy ;  so,  on  the  other  hand,  even  in 
cases  of  general  insanity,  there  may  be  not  only  lucid  intervals  in 

held  to  be  non  compos  mentis,  and  the  will  was  therefore  set  aside. — 5  Quar.  Jur. 
Scie.  242. 

A  change  came  o'er  the  spirit  of  my  dream. 

The  lady  of  his  love ; — Oh !  she  was  changed 

As  by  the  sickness  of  the  soul ;  her  mind 

Had  wander' d  from  its  dwelling,  and  her  eyes 

They  had  not  their  own  lustre,  but  the  look 

Which  is  not  of  the  earth  ;  she  was  become 

The  queen  of  a  fantastic  realm ;  her  thoughts 

Were  combinations  of  disjointed  things  ; 

And  forms  impalpable  and  unperceived 

Of  others'  sight,  familiar  were  to  hers. 

And  this  the  world  calls  phrenzy ;  but  the  wise 

Have  a  far  deeper  madness,  and  the  glance 

Of  melancholy  is  a  fearful  gift ; 

What  is  it  but  the  telescope  of  truth? 

Which  strips  the  distance  of  its  phantasies, 

And  brings  life  near  in  utter  nakedness, 

Making  the  cold  reality  too  real !  Byron's  Dream, 

(j)  Such  phantoms  pride,  in  solitary  scenes. 

Or  fear,  or  delicate  self-love,  creates. 

From  other  cares  absolv'd,  the  busy  mind 

Finds  in  yourself  a  theme  to  pore  upon ; 

It  finds  you  miserable,  or  makes  you  so. 

For  while  yourself  you  anxiously  explore, 

Timorous  self-love,  with  sick'ning  fancy's  aid, 

Presents  the  danger  that  you  dread  the  most. 

And  ever  galls  you  in  your  tender  part. 

Hence,  some  for  love,  and  some  for  jealousy, 

For  grim  religion  some,  and  some  for  pride, 

Have  lost  their  reason  ;  some  for  fear  of  want, 

Want  all  their  lives;  and  others  every  day, 

For  fear  of  dying,  suffer  worse  than  death. 

Dr.  Armstrong  on  Health,  book  4. 
(k)  White  V.  Wilson,  13  Ves.  88  ;  Bootle  v.  Blundell,  19  Ves.  508  ;  Dew  v.  Clark, 
1  Addaras'  Eccl.  Rep.  279,  and  3  Addams'  Eccl.  Rep.  79 ;  Shelf.  Lun.  intro.  54  & 
293 ;  Conolly  Ind.  Insanity,  383,  446. 


COLEGATE  D.  OWINGS'  CASE.  339 

all  respects,  but  there  may  also  be  particular  points  and  objects  as 
to  which  the  mind  of  the  maniac  may  be  perfectly  clear,  consistent, 
and  sound  ;  as  in  the  case  of  the  holographic  will  made  by  a  lunatic 
woman,  whose  hands,  at  her  earnest  entreaty,  were  untied  for  the 
purpose  of  permitting  her  to  write.  (Z) 

But  this  proteus  disorder,  in  its  milder  forms,  is  not  at  all 
perceptible  to  a  superficial  observer,  often  escapes  the  notice  of  the 
most  skilful,  even  after  being  apprised  of  the  existence  of  the 
malady  ;  and  it  frequently  happens  that  it  cannot  be  detected 
without  an  examination  of  some  time,  and  repeated  observations. 
Although  in  law  this  state  of  the  mind  is  held  to  be  a  course  or 

o 

habit,  not  a  mere  act,  but  as  having  some  continuance ;  yet  it  is 
considered  as  a  distempered  condition,  occasioned  by  disorder  or 
accident,  from  which  the  recovery  of  the  patient  is  deemed  possible 
and  probable ;  and  therefore  he  and  his  property  are  always  dis- 
posed of  with  a  view  to  a  recovery. (m) 

Dotage  is  that  feebleness  of  the  mental  faculties  which  proceeds 
from  old  age.  It  is  a  diminution  or  decay  of  that  intellectual 
power  which  was  once  possessed.  It  is  the  slow  approach  of 
death  ;  of  that  irrevocable  cessation,  without  hurt  or  disease,  of  all 
the  functions  which  once  belonged  to  the  living  animal.  The 
external  functions  gradually  cease ;  the  senses  waste  away  by 
degrees ;  and  the  mind  is  imperceptibly  visited  by  decay.  The 
inert  and  dull  senses  transmit  the  passing  occurrences  so  imper- 
fectly to  the  sensorium,  that  they  leave  none,  or  but  a  veiy  transi- 
tory impression  there.  Hence  long  past  transactions  are  often 
remembered  with  much  more  exactness  than  those  which  have 
taken  place  recently.  In  the  second  childhood,  as  in  the  Jirsf,  all 
the  present  makes  but  a  faint  and  fleeting  impression  upon  the 
mind.  Hence  the  judgment  in  both  stages,  is  weak,  and  the 
conduct  unsteady  and  frivolous. (n) 

(I)  Cartwris^htv.  Cartwright,  1  Phill.  90.— (m)  1  Coll.  Id.  33  ;  Beverley's  case,  4  Co. 
124 ;  Donegal's  case,  2  Ves.  408  ;  Attorney  General  v.  Parnther,  3  Bro.  Ch.  Ca.  441 ; 
Fitzgerald,  a  lunatic,  2  Scho.  &  Lefr.  437  ;  Shelf.  Lun.  36. 
(n)  "The  soul  in  all  hath  one  intelligence; 

Though  too  much  moisture  in  an  infant's  brain, 
And  too  much  dryness  in  an  old  man's  sense, 
Cannot  the  prints  of  outward  things  retain  : 
Then  doth  the  soul  want  work,  and  idle  sit ; 
And  this  we  childishness  and  dotage  call.  Davies. 

Or,  as  has  been  said,  it  is  that  decline  of  all  the  powers  of  the  man,  when 
Nature,  as  it  grows  again  towards  earth 

Is  fashion'd  for  the  journey,  dull,  and  heavy.  Coipper. 

Shakspeare's  ^s  You  Like  It,  act  2,  s.  7,  and  second  part  of  Henry  Ath,  act  1,  s.  2. 


390  COLEGATE  D.  OWINGS'  CASE. 

But  a  man  in  his  dotage  is  evidently  distinguishable  from  an 
idiot,  who  has  no  mind  at  all ;  a  patient  in  delirium,  whose  mind 
is  ungoverned  and  ungovernable  ;  or  a  lunatic,  whose  mind  is  in 
ruins,  broken  up,  and  tlie  component  parts  of  which  are  at  variance 
with  each  other.  The  old  man  has  a  mind,  worn  and  in  a  state 
of  decay,  it  is  true,  but  still,  so  much  of  it  as  remains,  is  feebly 
governed  upon  the  principles  of  its  former  sound  condition ;  its 
conceptions  are  not  impertinently  mixed ;  nor  is  it  grossly  mis- 
guided in  any  of  the  feeble  operations  of  which  it  is  capable. 
Perhaps  the  most  striking  peculiarity  of  dotage  is  its  imbecility  of 
perception.  The  senses  not  supplying  the  mind  as  usual  with 
matter  for  exertion,  it  decays  for  want  of  use ;  and  becomes  inca- 
pable of  receiving  any  additional  ideas,  or  of  following  through 
any  unusually  catinated,  or  long  combination  of  thought.  Hence 
the  infant  and  the  dotard,  from  imbecility  of  bodily  functions, 
present  that  remarkable  similarity  in  the  feebleness  of  their  minds  ; 
and  easily  surrender  themselves  to  the  direction  of  those  about 
them,  for  whom  they  have  a  regard,  or  who  may  choose  to  exercise 
any  authority,  or  influence  over  them.  Physicians,  it  appears,  do 
not  regard  this  species  of  mental  imbecility  as  being  in  itself  a 
disorder,  or  the  effect  of  disease. (o)  But  the  law  considers  it 
not  only  as  a  species  of  insanity,  from  which  there  is  no  hope 
of  recovery,  but  as  one  which  always  becomes  worse  as  age 
advances,  (p) 

It  has  been  long  and  well  established,  that  a  contract  made  by  a 
person  who  is,  at  the  time,  actually  non  compos  mentis^  either  as  in 
idiocy,  delirium,  lunacy,  or  dotage,  is  entirely  void  ;  indeed  it  would 
seem  to  be  difficult  to  conceive  how  such  a  contract  should  ever  have 
been  otherwise  considered  than  as  an  absolute  nullity. (9)  But  the 
law  does  not  allow  of  an  examination  into  the  wisdom  and  prudence 
of  men  in  disposing  of  their  estates ;  for  every  man  who  is  legally 
compos  mentis,  is  a  disposer  of  his  property,  and  his  will  stands  for 
a  reason.  The  law  however  so  far  regards  human  infirmity,  as  that 
if  a  person  of  weak  mind  be  imp.osed  upon,  he  may  be  relieved  ;  not, 
however,  merely  because  of  his  weakness  of  mind,  or  of  his  old 
age ;  for,  that  alone  furnishes  no  sufficient  ground  for  vacating  a 

(0)  Rees'  Cyclo.  ver.  Death  ;  1  Par.  &  Fonb.  308 ;  Rush  on  the  Mind,  61,  292, 294 ; 
Conolly  Ind.  Insanity,  ch.  8  &  page  440,  44.3.— (jj)  Leving  v.  Caverly,  Free.  Chan. 
229  ;  Ridgeway  v.  Darwin,  8  Yes.'  66  ;  Ex  parte  Cranmer,  12  Ves.  446  ;  Gibson  v. 
Jeyc?,  6  Yes.  275.— (^)  Thompson  v.  Leach,  1  Ld.  Raymond,  313 ;  3  Mod.  301. 


COLEGxVTE  D.  OWINGS'  CASE.  39I 

contract ;  yet,  that  with  other  circumstances,  will  afford  a  sufficient 
foundation  for  relief,  (r) 

What  is  that  degree  of  intellectual  imbecility  which  may  be 
taken  into  the  estimate  as  one  of  the  component  parts  of  a  ground 
for  relief,  in  those  cases  where  the  boundary  between  mere  weak- 
ness and  a  condition  of  7ion  compos  mentis  is  so  narrow  that  it  may 
be  difficult  to  draw  the  line,(s)  I  shall  not  undertake  to  deter- 
mine, as  I  have  not  been  able  to  find  it  any  where  particularly 
described. (^)  It  must  not,  however,  be  confounded  with  mere 
ignorance.  If  the  grantor  be  an  ignorant  and  illiterate  man,  one 
who  cannot  read  ;  it  is  necessary,  that  the  deed  should  be  fully  and 
correctly  read  to  him  ;  for,  if  it  is  not  read  at  all,  or  improperly 
read  to  him,  or  if  it  be  read  or  explained  to  him  improperly  even 
by  a  stranger, (w)  he  will  not  be  bound  by  it ;  not  on  tlie  ground  of 
weakness  of  mind,  or  of  his  incapacity  clearly  to  judge  of  what  he 
w^as  about ;  but  because  his  sound  mind  cannot  be  presumed  to 
have  assented  to  that  of  which  it  was  wholly  ignorant  or  misin- 
formed, (i;) 

It  has  been  laid  down  in  general  terms,  that  it  is  fraudulent  to 
obtain  a  deed  by  the  exercise  of  undue  influence  over  a  man  whose 
mind  had  ceased  to  be  a  safe  guide  of  his  actions  ;(a;)  or  from  a  man 
who  was  of  small  Understanding  and  not  able  to  govern  the  lands 
w^hich  had  descended  to  him.  (7/)  A  woman  who  could  read  and 
write,  and  had  taught  a  child  to  read,  was  held  to  be  a  person  of 
weak  understanding  ;(c;)  so  repeating  scraps  of  Latin  and  reading 
classic  authors  was  deemed  no  proof  of  sanity ;  because  what  a 
person  learns  in  his  youth  leaves  a  lasting  impression,  and  the 
traces  of  it  are  never  entirely  worn  out.  Such  a  person,  though 
not  a  lunatic,  was  determined  to  be  a  weak  man. (a)  In  another 
case  it  is  said,  that  the  man  was  foolish  to  imbecility,  though  not 
to  downright  idiocy. (6)  A  man  who  had  entirely  recovered  from 
a  long  continuance  of  lunacy  is  said  to  have  been  of  a  diseased 
intellect  from  his  birth. (c)  A  young  man  is  said  to  have  been  of 
mean  parts  and  easy  to  be  imposed  upon.(t?)     A  person  is  spojfen 

(r)  Osmond  v.  Fitzroy,  3  P.  Will.  130 ;  Willis  v.  Jernegan,  2  Atk.  251 ;  Ches- 
terfield V.  Janssen,  2  Ves.  156 ;  Lewis  v.  Pead,  1  Ves.  jun.  19 ;  1  Fonb.  66. 
(s)  Bennetr.  Vade,  2  Atk.  325.— (<)  Ball  v.  Manriin,  Shelf.  Lun.  25S.— (m)  Tho- 
roughgood's  Case,  2  Co.  9.—{v)  Henry  Pigofs  Case,  11  Co.  27;  Hatch  v.  Hatch, 
9  Ves.  295. — {x)  Harding  v.  Handy,  11  Wheat.  y25  ;  Chesterfield  v.  Janssen,  2  Ves. 
156.— (!/)  Tvvyne's  Case,  3  Co.  83.— (2)  White  v.  Small,  2  Chan.  Ca.  103.— (a)  Ben- 
net  t;.  Vade,  2  Atk.  325.— (6)  Bunch  v.  Hurst,  3  Desau.  2D2.— (c)  Wright  v.  Proud, 
13  Ves.  138.— ((i)  Portengton  i'.  EgJington,  2  Vern.  189. 


392  COLEGATE  D.  OWINGS'  CASE. 

of  as  being  seventy-two  years  of  age  and  a  weak  man  easily  to  be 
imposed  upon.(e)  And  again  it  is  said  that  the  grantor  was 
upwards  of  eighty-four  years  of  age ;  blind  or  nearly  so,  and 
altogether  dependent  on  the  kindness  and  assistance  of  others,  (y") 
From  all  which  it  would  appear,  that  by  weakness  is  meant  a  sort 
of  mental  imbecility  approaching  to  the  condition  of  one  who  is 
actually  non  compos  mentis,  and  analogous  to  childishness  and 
dotage,  (o-) 

The  circumstances  which,  when  taken  in  connexion  with  this 
weakness  of  mind,  constitutes  a  foundation  of  fraud  whereon  to 
vacate  a  contract,  are  various. (/i)  Such  as  that  of  the  deed  never 
having  been  left  for  perusal ;  or  its  not  being  read ;  'or  its  being 
prepared  by  the  grantee  and  obtruded  on  the  grantor ;  or  where 
the  gift  was  exorbitant ;  or  where  the  party  had  not  then  the  means 
of  paying  what  he  stipulated  to  pay ;  or  where  in  consequence  of 
the  relation  in  which  the  parties  stood  towards  each  other,  or  in 
any  way,  the  grantee  had  obtained  a  commanding  influence,  or  the 
entire  confidence  of  the  grantor,  which  was  used  ;  as  in  the  case 
of  a  wife  who  had  used  unwarrantable  means  to  insinuate  herself 
into  the  favour  of  an  old  man,  and  by  imposing  upon  his  weak- 
ness, had  clandestinely  obtained  from  him  a  conveyance  of  his 
estate  ;(i)  or  where  the  consideration  was  greatly  inadequate ;  or 
where  the  weak  man  had  conveyed  all  his  property,  leaving  him- 
self to  be  fed  and  clothed  at  the  pleasure  of  the  grantee.  In  all 
these,  and  many  other  similar  cases,  the  weakness  of  mind  of  the 
party,  who  was  not  altogether  non  compos  mentis,  has  been  taken 
into  account  with  the  other  circumstances  to  make  up  that  amount 
of  imposition  and  fraud  which  was  considered  as  a  sufficient 
ground  for  relief  (j) 

This  plaintiff,  it  appears,  has  until  tlie  latter  years  of  her  long 
life  enjoyed  a  full  share  of  sound  well  regulated  mental  capacity. 
But  when  this  suit  was  instituted  she  had  advanced  beyond  the 


(e)  Clarkson  v.  Hanway,  2  P.  Will.  204.— (/)  Griffith  v.  Robins,  3  Mad.  191. 
(g)  Kaimes'  Pri.  Eq.  b.  1,  p.  1,  c.  1,  s.  3  &,  c.  2  ;  Bates  v.  Graves,  2  Ves.  jun.  289. 
(A)  Shelf.  Lun.  265. — {i)  Hervey  j;.  Hervey,  1  Atk.  564 ;  Mountain  v.  Bennet,  1  Cox. 
353  ;  Nantes  v.  Corrock,  9  Ves.  1S3.— (7)  White  v.  Small,  2  Chan.  Ca.  103  ;  Porteng- 
ton  V.  Eglington,  2  Vern.  189 ;  Clai-kson  v.  Hanway,  2  P.  Will.  204 ;  Donegal's  Case, 
2  Ves.  403 ;  Bridgman  v.  Green,  2  Ves.  627  ;  Bennet  v.  Vade,  2  Atk.  324  ;  Norton 
V.  Relly,  2  Eden,  286  ;  Wright  v.  Proud,  13  Ves.  136  ;  Huguenin  v.  Basely,  14  Ves. 
273  ;  Harvey  v.  Pecks,  1  Mun.  518  ;  Rutherford  v.  Ruff,  4  Desau.  350 ;  Rowland  v. 
Sullivan,  4  Desau.  518 ;  Brogden  v.  Walker,  2  H.  &  J.  2S5 ;  Gibson  v.  Jeyes, 
6  Ves.  275. 


COLEGATE  D.  OWINGS'  CASE.  393 

eighty-fourth  year  of  her  age ;  and  upon  a  short  interview  which  I 
had  with  her,  after  the  commencement  of  this  suit,  it  appeared  that 
her  age  was  attended  with  at  least  its  ordinary  infirmities.  Some 
of  the  most  skilful  of  the  witnesses  after  a  short  visit,  which  they 
made  to  her,  say,  that  they  observed  in  her  mental  pov.-ers  a  slower 
comprehension  and  a  diminished  power  of  associating  her  ideas, 
which  is  common  to  old  age.  Other  witnesses  represent  her  mind 
as  then  in  a  state  of  absolute  dotage ;  in  a  condition  of  fee- 
bleness reduced  much  below  that  degree  of  power  necessary 
to  a  sensible  disposition  of  her  property.  And  the  defendant 
admits,  that  the  plaintiff  was  then  so  enfeebled  by  age  and  its  con- 
sequent infirmities,  that  her  mind  was  exposed  to  the  exercise  of 
very  undue  influence  by  those  about  her.  From  the  very  nature 
of  this  mental  infirmity,  it  is  evident,  that  its  then  existence  is,  in 
itself,  proof  of  its  having  commenced  some  time  before.  The 
transition  from  soundness  of  mind  to  delirium,  or  lunacy,  may  be 
very  rapid  or  instantaneous  ;  but  dotage  is  a  slow  decay,  the  exter- 
nal signs  of  which  do  not  appear  until  after  it  has  been  going  on 
for  some  time.  The  proofs  clearly  establish  the  fact,  that  the 
plaintiff  is  now  in  a  state  of  dotage.  But  its  perceivable  com- 
mencement has  not  been  so  well  ascertained.  Two  of  the  wit- 
nesses speak  of  its  having  been  observable  so  much  as  about  eight 
years  ago.  It  is  certain,  however,  that  her  dotage  commenced 
some  years  before  the  institution  of  this  suit.  The  proofs,  in  rela- 
tion to  the  plaintiff's  conduct,  also  exhibit  some  instances  of  the 
milder  forms  of  lunacy.  The  plaintifTs  account  of  a  hurt  she  had 
lately  sustained,  ascribing  it  to  her  falling  in  a  race  she  ran  ;  the 
particulars  she  related  of  her  visit  to  Annapolis  ;  and  some  other 
circumstances,  are  evidences  of  that  species  of  incongruous  asso- 
ciation and  misguided  direction  of  the  mind  so  peculiarly  charac- 
teristic of  lunacy.  Such  is  the  sum  and  substance  of  the  testi- 
mony so  far  as  regards  the  general  condition  of  the  plaintiff's 
mind. 

In  relation  to  the  epoch  of  the  execution  of  the  deed  of  the 
15th  of  June  1824,  the  proceedings  and  the  proofs  are  more  dis- 
tinct and  particular.  It  is  stated  and  admitted,  that  the  plaintiff 
was  subject  to  attacks  of  erysipelas,  and  was  suffering  under  that 
disorder  when  the  instrument  of  writing,  which  is  the  special  sub- 
ject of  this  controversy,  was  executed.  From  good  medical 
authority  we  learn,  that  erysipelas  is  often  preceded,  or  attended, 
or  succeeded  by  delirium  ;  that  it  is  apt  to  affect  the  brain  ;  and 

50 


394  COLEGATE  D.  OWINGS'  CASE. 

that  the  inflammation  or  oppression  of  the  brain  is  known  either,  by 
delirium  with  a  quick  pulse ;  or  by  stupor  and  slow  respiration 
with  a  slow  pulse.  And  that  sometimes,  when  the  delirium  is  not 
complete,  a  new  face,  and  louder  voice  will  stimulate  the  patient  to 
attend  for  a  few  moments,  and  then  he  relapses.  But  glaring  light, 
loud  noises,  and  company  increase  the  irritation  and  aggravate  the 
delirium,  (/v) 

It  appears  from  the  testimony,  that  the  plaintiff  had  been  attacked 
with  the  erysipelas  some  days  before  the  15th  June  1824;  that  one 
of  the  attending  physicians  was  informed  by  the  family,  that  the 
disorder  of  the  plaintiff  was  a  periodical  one,  and  generally  came 
on  about  eight  o'clock  in  the  morning.  Dr.  Marsh  says,  that  dur- 
ing the  paroxysms,  there  was  always  a  determination  towards 
apoplexy.  Dr.  Griffitli  visited  the  plaintiff  on  the  14th  of  June, 
(he  thinks  in  the  afternoon,)  she  then  complained  a  good  deal  of 
her  head,  but  was  rational.  The  Doctor  perceived  no  disarray  of 
intellect ;  and  he  thinks  she  was  at  that  time  sufficiently  possessed 
of  her  faculties  to  m'i^ke  a  contract  or  dispose  of  her  property.  But 
after  the  Doctor  left  her,  and  in  the  evening  of  the  same  day,  she 
w^as  delirious  ;  or  as  the  witnesses  say,  out  of  her  head ;  and  her 
mind  w^as  entirely  gone ;  that  when  roused  she  would  speak  inco- 
herently and  then  sleep  again ;  insensible  to  any  thing  that 
passed ;  that  there  was  some  company  in  the  plaintiff's  room, 
who  were  removed  lest  their  conversation  and  noise  should  disturb 
or  injure  her. 

About  sunrise  of  the  morning  of  the  15th  of  June,  the  defend- 
ant came  into  the  chamber  of  the  plaintiff,  and  with  a  great  noise 
hoisted  the  windows,  threw  open  the  shutters,  and  let  into  the 
room  a  strong  light ;  which  however  did  not  arouse  the  plaintiff, 
who  had  lain  the  whole  night,  and  then  was  in  a  state  of  apparent 
preternatural  sleep  ;  insomuch  so,  that  she  did  not  notice  an  attend'- 
ant,  who,  after  the  windows  had  been  thus  noisily  opened,  felt  her 
forehead  and  took  hold  of  her  hand.  Immediately  after  which  the 
defendant  was  left  alone  in  the  room  with  the  plaintiff  thus  abed. 
What  passed,  if  any  thing,  while  these  parties  were  so  left  together 
in  the  same  room,  does  not  appear.  But  in  a  short  time  afterwards, 
Thomas  D.  Cockey  and  John  Feudal,  two  justices  of  the  peace, 
who  had,  the  evening  before,  been  sent  for  and  requested,  by  the 
defendant,  to  attend  there  on  that  morning,  were  introduced  into 

(A;)  2  Zoonomia,  CI.  2,  I,  3,  2;  Rees'  Cyclo.  ver.  Delirium. 


COLEGATE  D.  OWINGS'  CASE.  395 

the  plaintiff's  chamber  by  the  defendant ;  they  found  the  plaintiff 
quite  awake,  and  interchanged  with  her  the  usual  salutations  on 
the  meeting  of  acquaintances.  Immediately  after  the  coming  in  of 
these  justices  the  defendant  produced  the  instrument  of  writing 
referred  to  in  the  proceedings  as  the  deed  of  the  15th  June  1824  ; 
and  offered  it  to  the  plaintiff  for  execution.  The  defendant  raised 
the  plaintiff  up,  and  assisted  in  seating  her  in  bed  ;  and  then  on 
being  accommodated  by  a  desk  placed  in  her  lap  to  write  upon, 
and  having  her  hand  steadied  or  guided  by  Justice  Feudal^  the 
plaintiff  signed  the  instrument  of  writing  and  acknowledged  it  as 
her  act  and  deed ;  and  these  justices  took  and  certified  the  ac- 
knowledgment accordingly.  This  instrument  of  writing  so  signed 
by  the  plaintiff,  which  conveyed  the  whole  of  her  property,  was 
not  then  read  to,  or  by  her ;  nor  does  it  appear,  that  she  ever  once 
saw  it  before ;  nor  was  there  at  that  time  any  conversation  upon 
the  subject.  No  one  else  was  then  present  in  the  room  but  these 
four  persons,  the  two  parties,  and  the  two  justices.  And,  after  a 
stay  of  about  one  hour  in  the  house,  the  two  justices  departed. (/) 

These  justices  (one  of  whom.  Fended,  only  it  appears  but  once 
ever  saw  the  plaintiff  at  any  other  time  during  the  illness  under 
which  she  w%is  then  suffering,)  both  assert,  that  when  they  took 
her  acknowledgment  of  the  deed,  she  was  in  a  sound  state  of  mind. 
But  other  witnesses  testifj',  that  on  the  morning  of  that  day  she 
was  in  rather  a  weaker  condition  than  on  the  evening  before  ;  that 
her  mind  was  evidently  wandering ;  and  that  she  was  manifestly 
incapable  of  judging  of  the  propriety  or  effect  of  any  deed  or  other 

(Z)  I  have  shewn  in  a  former  case,  {H.  K.  Chase's  case,  ante,  206)  that  a  private 
acknowledgment  of  a  deed  of  conveyance  by  a  feine  covert  was  introduced  here  as  a 
substitute  for  a  fine,  and  that  such  an  acknowledgment  was  held  to  be  as  binding 
upon  her,  although  not  altogether  as  effectual  against  third  persons,  as  a  fine.  A 
person  non  compos  mentis  cannot  levy  a  fine,  or  make  a  conveyance  of  his  pro- 
perty in  that  mode,  because  the  judges  will  not  receive  the  acknowledgment  of  an 
insane  person  ;  but  if  a  judge  does  receive  the  acknowledgment  of  a  fine  from 
the  most  monstrous  and  visible  idiot,  it  will  be  held  to  be  final  and  conclusive 
against  him ;  because,  as  a  judicial  record,  it  cannot  be  questioned ; — (Mam- 
field's  Case,  12  Co.  124,  and  10  Co.  42;)  yet  a  fine  is  said  to  be  nothing  more  than 
a  common  conveyance.  This  pernicious  incongruity  between  a  conveyance  by  deed, 
and  by  fine  in  England,  it  is  said,  is  about  to  be  removed  by  a  statute  abolishing 
fines  and  recoveries,  and  substituting  deeds  of  conveyance,  which  are  to  have  the 
same  effect  without  being  considered  as  conclusive  judicial  records. — (Shelf.  Lun. 
§•  Idiots,  248,  note.)  But  in  Marjland,  the  acknowledgment  of  a  deed  before  justices 
of  the  peace,  although  in  some  particulars  treated  as  the  substitute  of  a  ,/ine,  has 
never  been  considered,  like  a  fine,  as  a  judicial  record,  and  to  that  extent  conclusively 
binding  upon  the  party. — {Leiois'  Lessee  v.  Waters,  3  //.  <§r  McH.  430.) 


396  COLEGATE  D.  DIVINGS'  CASE. 

matter  which  required  consideration ;  i5nd  that  she  had  been  in 
that  condition  some  two  or  tliree  days  previous.  About  four  o'clock 
in  the  afternoon  of  the  15th,  Dr.  Marsh  visited  the  plaintiff  and 
found  her  apparently  asleep,  but  on  being  once  or  twice  called  by 
the  defendant,  the  plaintiff  roused  up,  and  gave  him  her  hand.  The 
Doctor  thinks  she  ansvv^ered  intelligently  to  all  the  questions  he 
asked  her.  But  he  declined  to  answer  directly,  and  say,  whether 
or  not  she  was  then  in  a  sound  state  of  mind  ;  and  says,  that  the 
questions  he  asked  her  were  not  of  a  nature  for  him  to  judge  of  her 
sanity.  On  the  next  morning,  the  16th,  Dr.  Marsh  and  Dr.  Grif- 
fith  at  nine  o'clock,  visited  the  plaintiff,  and  found  her  in  an  apo- 
plectic state,  entirely  insensible  and  unable  to  speak  or  move ;  and 
requiring  all  the  strength  of  one  of  them  to  straighten  her  arm  to 
bleed  her.(??i)  After  being  bled  she  continued  to  be  perfectly 
comotose,  or  absorbed  in  a  preternatural  sleep,  or  stupor,  until  day- 
break of  the  17th,  when  she  awoke  ;  but  was  still  incoherent  in  her 
mind.     After  which  she  gradually  recovered. 

The  instrument  of  writing,  v/hich  was  thus  signed  on  the  15th 
of  June  1824,  had  been  prepared  by  Justice  Feudal,  as  he  states, 
for  and  at  the  request  of  the  defendant  about  six  months  previous ; 
but  the  defendant  admits,  in  her  answer,  that  she  had  caused  it  to 
be  prepared  by  him  in  1822.  During  the  greater  part  of  the  inter- 
val between  the  periods  of  its  preparation  and  execution,  the  plain- 
tiff had  enjoyed  her  usual  state  of  good  health.  About  six  months 
before  this  instrument  was  executed,  in  a  conversation  upon  the 
subject  of  the  provision  which  the  plaintiff  had  promised,  or 
intended  to  make  for  the  defendant,  the  plaintiff  declared  to  the 
defendant,  that  she  would  leave  her  no  more  than  a  life  estate  in 
her  property.  And  the  plaintiff  often  before  and  after  made  simi- 
lar declarations.  The  defendant  had  always  continued  to  reside 
with  the  plaintiff,  who  had  latterly  confided  the  management  of  her 
estate  very  much  or  altogether  to  the  defendant,  who  had  ahvays 
conducted  herself  toward  the  plaintiff  as  a  dutiful  daughter ;  and 
the  plaintiff  had  great  confidence  in  the  defendant. 

Upon  the  whole  then,  and  after  the  most  careful  investigation  of 
this  case,  thus  far,  there  appears  to  be  no  one  ground  upon  which 
this  deed  can  be  permitted  to  stand.  It  was  prepared  at  the  sole 
instance  of  the  defendant.     It  was  never  at  anv  time  submitted  to 


(m)  "A  very  npoplfxy,  lethargy,  mulled,  deaf,  sleepy,  insensible." — Coriolanus, 
act  4,  s.  5. 


COLEGATE  D.  OWINGS'  CASE.  397 

the  consideration  of  the  plaintiff,  or  in  her  possession  for  an  instant 
before  its  execution  ;  and  at  that  time,  it  was  neither  read  by  or  to 
her,  or  explained  to  her  in  any  form  whatever,  (n)  It  conveys  to 
the  defendant,  in  the  most  full  and  comprehensive  terms,  the  whole 
and  entire  estate  real  and  personal  of  the  plaintiff,  without  condi- 
tion or  reservation  of  any  kind  whatever.  It  professes  to  have 
been  made  for  value  received,  but  was  in  fact  signed  without  the 
least  valuable  consideration ;  and,  if  sustained,  would  leave  the 
plaintiff  utterly  destitute  and  pennyless.  At  the  time  of  the  exe- 
cution of  this  deed  the  plaintiff  was  upwards  of  eighty-four  vears 
of  age;  and  was  then,  and  had  been  for  some  time  previous  in  a 
state  of  general  dotage :  and  besides,  was  at  the  time  suffering 
under  an  attack  of  erysipelas,  that  grievously  affected  her  mental 
faculties,  from  which  attack  she  could  not  have  immediately 
recovered  a  perfectly  sound  state  of  mind,  even  after  that  bodily 
disease  had  intermitted  or  passed  off,  and  which  disorder  must 
have  considerably  accelerated  the  previously  commenced  devasta- 
tions of  age.(o)  This  deed  must  therefore  be  annulled,  as  well 
because  the  plaintiff  was,  at  the  time  it  was  executed,  actually 
non  compos  mentis  ;  as  on  the  ground,  that  it  was  obtained  by  the 
most  gross  abuse  of  confidence,  and  by  a  fraudulent  combination ; 
for,  as  it  has  been  truly  said,  fraud  and  deceit  by  him  who  is 
trusted,  is  most  odious  in  law.(/)) 

Thus  far  the  plaintiff  will  obtain  all  the  equity  she  asks.  But 
he  who  asks  equity  must  do  equity.  The  plaintiff  herself  seems 
to  admit  in  her  bill,  when  taken  in  connexion  with  her  late  hus- 
band's will,  which  she  exhibits  as  a  part  of  it,  that  she  stands  here 
in  some  sort  encumbered  with  an  equity  due  to  the  defendant. 
And  the  only  difference  between  these  parties  as  to  that  claim  is  as 
to  its  extent.  The  defendant  claims  an  absolute  estate  in  fee  sim- 
ple in  the  property  of  the  plaintiff  after  her  death.  While,  on  the 
other  hand,  the  plaintiff  insists,  that  the  defendant's  claim  extends 
no  further  than  a  life  estate  with  remainder  to  her  lawful  children, 
should  she  have  any. 

The  bill  states,  that  the  plaintiff  was  seized  in  fee  simple  of  a 
tract  of  land  called  ^''  John  8f  Thomas^  Forest  ;^^  that  at  an  early 
period  of  her  life  she  married  Jolm  C.  Owings,  who  made  his  will, 


(n)  Thorpughgood's  Case,  2  Co.  9. — (o)  Attorney  General  v.  Parnthcr,  3  Bro.  C.  C. 
443  ;  1  London  Jurist,  340  ;  Scrgeson  v.  Sealcy,  2  Atk.  413. — (/))  Fcrmor's  Case, 
3  Co.  79. 


398  COLEGATE  D.  OWINGS'  CASE. 

which  is  exhibited  as  a  part  of  the  bill,  and  died  in  February 
1810 ;  that  the  plaintiff  had  intended,  by  her  last  will,  to  make 
some  sufficient  provision  for  the  defendant,  the  nature  of  which  is 
thus  described.  After  some  specific  legacies  to  the  plaintiff's  chil- 
dren and  grand-children,  to  give  the  defendant  an  estate  for  life  in 
her  real  property,  the  residue  of  her  personal  estate,  and  a  remain- 
der in  the  real  estate  to  the  defendant's  children  should  she  have 
any ;  and  in  the  event  of  failure  of  issue  lawfully  begotten,  then  to 
the  other  children  of  the  plaintiff  to  be  equally  divided  among 
them.  That  the  defendant  being  wholly  dissatisfied  with  such  a 
provision,  and  insisting  on  an  unconditional  absolute  estate  in  the 
whole,  the  plaintiff  then  openly  avowed  her  determination  to  make 
no  will ;  to  die  intestate,  and  to  leave  her  property  to  pass  and  be 
distributed  according  to  law.  The  defendant  admits  these  facts  ; 
but  alleges  and  insists,  that  four  of  her  sisters  having  been  amply 
provided  for  by  the  late  Thomas  C.  Deye  their  uncle,  the  plaintiff 
promised  the  late  John  C.  Owings  the  defendant's  father,  that  she 
would  give  her  estate  to  the  defendant.  In  consequence  of  which, 
and  in  confident  reliance  upon  that  promise,  her  father  made  his 
will,  in  the  manner  he  did,  leaving  the  defendant  nothing  more 
than  a  mere  token  of  his  affectionate  recollection.  And  the  defend- 
ant avers,  that  the  deed  of  the  15th  of  June  1824  was  made  with 
a  view  to  and  in  fulfilment  of  that  promise. 

From  the  proofs  it  appears,  that  Johii  C.  Ovnngs  and  the  plain- 
tiff his  wife  during  their  marriage  had  eight  children,  who  survived 
him ;  and  that  he  had  a  large  estate  consisting  of  real  and  personal 
property  within  this  State  and  elsewhere ;  that  his  uncle  the  late 
Thomas  C.  Deye,  was  seized  of  a  considerable  real  estate,  which  by 
his  last  will  he  devised  to  four  of  the  daughters  of  his  nephew 
John  C.  Owings,  each  of  whose  share  contained  from  four  hundred 
and  fifty  to  six  hundred  acres  of  land,  the  least  of  which  was  esti- 
mated as  worth  about  $16,000;  that  Joh7i  C.  Owings,  the  late 
husband  of  the  plaintiff,  by  his  will,  and  otherwise,  gave  the  whole 
of  his  real  and  personal  estate  to  his  two  sons  Thomas  D.  Owings 
and  John  C.  Owings  ;  except  some  personalty,  which  he  gave  to 
his  wife,  and  some  other  property,  which  he  gave  to  his  daughters 
in  payment  of  a  debt  he  owed  them.  The  property  he  gave  to  his 
son  Thomas  is  said  to  have  sold  for  $20,000. 

In  his  will  the  late  John  C.  Owings,  the  father  of  the  defendant, 
says — "  I  give  to  my  daughter  Charlotte  Deye  Owings  a  family 
Bible  and  a  spinning  wheel  as  a  token  of  my  affection,  it  being  my 


COLEGATE  D.  OWINGS'  CASE.  399 

desire  and  expectation,  that  her  mother  will  provide  for  her,  she 
having  fully  in  her  power  to  do  so.  Item.  I  give  unto  my  four 
daughters  Mary  C.  J\'esbit,  Charcilla  Cockey  Deye  Oioings,  Penel- 
ope D.  Price,  and  Frances  Thwaites  Deye  Owhigs,  one  family  Bible 
each,  they  having  been  heretofore  provided  for  by  my  uncle  the 
late  Thojnas  Cockey  Deye.'''' 

Thus  it  appears  to  have  been  the  intention  of  the  testator  John 
C.  Owings  so  to  dispose  of  his  property  as  that  the  provision  for 
each  of  his  children,  noticed  in  his  will,  should  be  entirely  or 
nearly  equal.  That  is,  of  his  eight  children,  he  liimself  provided 
for  two  ;  his  uncle  had  portioned  four ;  and  a  seventh  he  left  to  be 
provided  for  by  her  mother.  Of  his  eighth  child,  Cassandra,  he 
takes  no  notice  in  his  will ;  she  had  married,  disposed  of  herself, 
and  was  then  resident  at  a  great  distance  from  him.  It  appears  in 
proof,  that  the  "  desire  and  expectation,"  thus  expressed  by  this 
testator,  and  the  exclusion  of  his  daughter  Charlotte  from  any 
share  of  his  property,  was  in  consequence  of,  and  founded  upon  an 
express  promise  made  to  him  by  the  plaintiff,  (at  a  time  when  it  is 
admitted  on  all  hands  she  was  in  a  perfectly  sound  state  of  mind,) 
that  she  would  give  all  her  property  after  her  death  to  their  daughter, 
this  defendant,  in  fee  simple ;  and  in  full  confidence,  that  this  pro- 
mise so  made  to  him  for  the  benefit  of  Charlotte  would  be  faithfully 
observed  and  kept,  he  made  his  will,  and  in  about  one  month  after- 
wards died. 

Some  time  after  the  death  of  Jolm  C.  Owings,  his  son  John, 
being  sick  and  in  a  rapidly  declining  state  of  health,  declared  his 
intention  to  devise  his  estate  to  his  sister  this  defendant,  when  his 
mother,  the  plaintiff,  dissuaded  him  from  doing  so,  and  induced 
him  to  give  it  to  his  sister  Cassandra,  promising  him,  that  if  he 
would  do  so,  she  the  plaintiff  would  provide  for  the  defendant. 
Upon  the  faith  of  which  promise  he  made  his  w411,  devised  his 
estate  to  his  sister  Cassandra,  and  died.  There  is  nothing  said  in 
the  pleadings  about  this  devise  by  John  to  Cassandra ;  or  as  to 
John's  inducement  for  making  it.  But  it  may  be  fairly  inferred, 
that  the  plaintiff  was  actuated  by  a  strong  feeling  of  equity  towards 
all  her  children ;  and  knowing,  that  she  had  promised  to  give  her 
estate  to  the  defendant,  she  washed  John's  to  take  another  direc- 
tion, and  be  given  to  Cassandra,  in  order  to  provide  for  her; 
and  also  to  prevent  the  defendant  from  obtaining  a  double  por- 
tion. Taken  in  this  point  of  view,  I  have  deemed  it  a  matter 
which  might  be  noticed  as  a  corroboration  of  the  proofs  in  relation 


400  COLEGATE  D.  OWINGS'  CASE. 

to  the  promise  made  by  the  plaintiff  to  her  late  husband  for  the 
benefit  of  the  defendant. 

There  can  be  no  doubt,  that  the  plaintiff  always  admitted  she 
had  intended  to  give  a  life-estate,  at  least,  in  her  property  to  the 
defendant.  Much  testimony  has  been  collected  in  relation  to  what 
the  plaintiff  had  said  since  the  death  of  her  husband,  as  to  the 
manner  in  which  she  intended  to  provide  for  the  defendant.  But 
the  greater  part  of  these  declarations  are  proved  to  have  been  made 
subsequently  to  that  period  of  time  when  her  mental  decay  had 
commenced ;  and  therefore,  so  far  as  they  may  have  been  intro- 
duced as  evidence  of  the  affirmance  of  an  equivocal  or  voidable 
promise,  deserve  little  attention.  But  it  is  of  no  kind  of  import- 
ance to  ascertain  w^hat  were,  at  any  time,  the  limits  of  the  plain- 
tiff's intended  bounty  to  the  defendant ;  because,  as  to  that  her 
wull  is  the  law.  Therefore,  all  the  testimony  which  relates  to  her 
declarations  of  benevolent  intentions,  may  be  at  once  put  out  of 
the  case. 

The  question  here  is,  not  what  the  plaintiff  at  any  time  kindly 
intended ;  but  whether  she  had  made  such  a  promise  as  is  alleged, 
and  what  have  been  her  admissions  and  acknowdedgments  of  that 
promise,  if  any.  As  to  which,  it  appears,  that  when  the  plaintiff 
was  called  on,  at  a  time  about  the  commencement  of  her  Intellectual 
decay,  tO  say  w^hether  she  had  actually  made  any  such  promise  to 
her  late  husband  in  favour  of  the  defendant,  or  not ;  and  whether 
any  thing  was  then  said  about  her  giving  to  the  defendarvt  any 
thing  less  than  an  absolute  estate  of  inheritance?  she  distinctly 
acknowledged,  that  she  had  made  such  an  unconditional  promise ; 
and  that  nothing  was  then  said  about  an  estate  for  life.  And  the 
plaintiff  has  since  made  similar  acknowledgments  as  to  the  nature 
and  extent  of  her  promise.  The  circumstance,  that  one  of  her 
children  had  been  cut  off  from  any  participation  in  the  father's 
property,  because  of  her  having  promised  to  provide  for  such 
child,  was  calculated,  from  its  very  Interesting  nature,  to  make  a 
strong  and  lasting  Impression,  and  likely  to  be  distinctly  recollected 
even  after  her  mind  had  fallen  into  a  great  degree  of  decay. (g) 

These  acknowledgments  of  the  promise  are  mainly  corroborated 
by  the  circumstances  of  the  late  John  C.  Owings^  family  at  the 
time  of  his  death  ;  and  tlie  disposition  which  he  made  of  his  estate 
by  his  will.    His  other  children,  there  spoken  of,  having  had  estates 

{q)  Bennet  v.  Vade,  2  Atk.  325. 


COLEGATE  D.  OWINGS'  CASE.  401 

of  inheritance  given  to  them  by  himself,  or  his  uncle,  shews  what 
was  his  understanding  of  the  plaintiff's  promise  at  the  time  it  was 
made  to  him  ;  and  that  in  the  "desire  and  expectation,"  expressed 
in  his  will,  he  alluded  to  a  provision  having  the  nature  and  extent 
of  the  others  there  made  or  spoken  of,  and  not  merely  a  fettered 
donation,  or  an  estate  for  life  only.  Hence,  all  circumstances 
considered,  I  have  come  to  the  conclusion,  that  the  promise 
was  made  by  the  plaintiff,  and  to  the  extent  alleged  by  the 
defendant. 

To  constitute  a  valid  contract,  the  performance  of  which  may  be 
enforced  either  at  law  or  in  equity,  it  must  be  founded  on  a  sufficient 
consideration.  That  is,  the  moving  cause  of  the  contract  must  be 
some  benefit  to  the  person  called  on  to  comply  with  it ;  or  a  benefit 
to  a  stranger ;  or  some  damage  or  loss  sustained  by  the  party 
claiming  the  performance ;  which  benefit  or  loss  has  accrued  or 
happened  at  the  request  or  instance  of  the  party  of  whom  the 
claim  is  made.(s)  Upon  a  mere  naked  pact  or  agreement,  not 
founded  on  any  such  consideration,  no  suit,  according  to  our  law, 
can  be  sustained  either  at  law  or  in  equity.  In  the  case  under 
consideration,  the  defendant,  it  is  shewm,  did  sustain  a  loss  by 
reason  of  the  promise  of  the  plaintiff. 

This  promise,  however,  was  not  made  by  the  plaintiff  to  the 
defendant ;  and  yet  it  is,  in  general,  essential  to  the  nature  of  a 
consideration,  that  it  should  move  from  the  party  asking  a  perform- 
ance of  the  contract :  for  if  such  party  is  a  mere  stranger  to  the 
consideration,  having  himself  sustained  no  loss,  nor  conferred  any 
benefit  on  the  opposite  party,  he  himself  has  no  claim  to  have  such 
contract  fulfilled.  But  a  father  is  under  a  natural  obligation  to 
provide  for  his  children ;  and  therefore,  a  promise  made  to  him  for 
their  benefit,  as  in  this  instance,  may  well  extend  to  them.  As 
where  a  father  was  about  to  cut  jGIOOO  worth  of  timber  to  raise  a 
portion  for  his  daughter,  the  heir  promised  him,  that  if  he  w'ould 
forbear  from  felling  the  timber,  he,  the  heir,  would  pay  the  daughter 
j£1000.  The  father  did  abstain,  in  consequence  thereof,  from 
cutting  the  timber,  and  died.  It  was  held,  that  the  contract  with 
the  father  enured  to  the  benefit  of  the  daughter,  was  founded  on  a 
sufficient  consideration,  and  that  the  daughter  might  sustain  an 
action  upon  it  against  the  heir,  and  recover.(/) 


(s)  Bunn  v.  Guy,  4  East,  194;  Violctt  v.  Patton,  5  Cran.  150.— (0  Button  v.  Poole, 
1  Vent.  318  ;  Martin  v.  Hind,  Cowp.  443. 

51 


402  COLEGATE  D.  OWINGS'  CASE. 

It  is  now  regarded  as  the  well  settled  doctrine  of  the  Court 
of  Chancery  in  England,  that  if  a  person  had,  before  his  death, 
communicated  his  intention  to  make,  or  alter  his  will,  and  give  a 
legacy,  or  portion  of  his  property,  to  a  certain  individual,  and  the 
heir,  or  any  one  else,  had  interposed,  and  prevented  the  making  or 
alteration  of  a  will  by  a  promise  to  pay  the  amount  of  the  proposed 
legacy,  to  transfer  the  property,  or  to  give  any  thing  else  in  lieu  of 
it  to  the  individual  thus  intended  to  be  benefited ;  that  the  promise 
so  made  is  binding,  as  being  made  on  a  consideration  of  loss  to 
the  individual ;  who  may  therefore  enforce  the  specific  performance 
of  it  in  a  court  of  equity.  The  statute  of  frauds  has  been  repeat- 
edly urged  as  an  objection  against  such  promises,  and  the  objection 
has  always  been  overruled.  The  parent  or  friend  of  the  individual 
intended  to  be  benefited,  being  put  at  rest,  and  relying  upon  such 
promise,  dies  in  perfect  confidence  that  it  will  be  fulfilled.  But  if 
the  individual  who  has  been  so  disappointed  of  an  express  provi- 
sion by  the  deceased,  could  not  have  the  promise  enforced,  his  loss 
would  be  altogether  irretrievable.  The  heir,  or  person  making  it, 
would  be  suffered  to  frustrate  the  intention  of  the  deceased;  to 
practise  a  fraud  with  perfect  impunity ;  and  the  statute  of  frauds, 
if  it  were  allowed  to  apply,  would  be  made  to  operate  for  the  pro- 
tection instead  of  the  prevention  of  fraud. (m) 

This  doctrine,  which  has  been  so  long  and  so  well  established 
in  England,  has  been  finally  and  solemnly  recognised  by  the  court 
of  the  last  resort  in  this  State.  The  case  is  to  his  effect :  Charles 
Browne  being  seized  of  a  considerable  real  estate  in  Maryland, 
declared  his  intention  so  to  dispose  of  it,  that  if  this  eldest  son  and 
heir,  James  Browne,  should  inherit  or  succeed  to  the  estate  of 
Andrew  Cochrane,  in  Scotland,  then  it  should  pass  to  and  vest  in 
his  second  son  Basil  Browne.  Upon  which  James  promised  his 
father,  that  in  the  event  of  his  obtaining  Cochrane^s  estate,  he 
would  convey  the  Maryland  estate  to  Basil :  provided  his  father 
would  make  no  will,  and  permit  the  Maryland  estate  to  descend  to 
him,  James,  as  his  heir  at  law.  Charles,  the  father,  in  consequence 
thereof,  died  intestate,  and  suffered  the  Maryland  estate  to  descend 
to  James  ;  who  afterwards  succeeded  to  the  estate  of  Cochrane. 
Upon  a  bill  filed  by  Basil,  the  promise  was  held  to  be  founded  on 

(u)  Chamberlaine  v.  Chambeilaiiie,  2  Fieem.  34 ;  Oldham  v.  Litchford,  2  Freein. 
284 ;  Thynn  v.  Thynn,  1  Veni.  296 ;  Drakeford  v.  Wilks,  3  Atk.  539  ;  Reech  v.  Ken- 
negal,  1  Ves.  124;  Dixon  v.  Ohnius,  1  Cox.  414;  Stickland  v.  Aldridge,  9  Ves.  519; 
Mestaer  r.  Gillespie,  II  Ves.  638 ;  Chamberlaine  i>.  Agar,  2  Ves.  &.  Bea.  259. 


COLEGATE  D.  OWIXGS'  CASE.  403 

a  sufficient  consideration,  and  it  was  decreed,  that  James  should 
convey  the  ]?.Iaryland  estate  to  Basil  accordingly. (i') 

The  defendant  having,  as  appears  in  proof,  lost,  or  failed  to 
obtain  an  estate  of  inheritance,  by  reason  of  the  plaintiff's  having 
undertaken  to  give  her  such  an  estate  in  her  property  after  her 
death,  it  is  clear,  according  to  the  established  principles  of  equity, 
that  the  defendant  should,  in  some  form  or  other,  have  the  full 
benefit  of  that  promise  assured  to  her.  The  whole  controversy  is 
now,  perhaps,  as  fully  presented  to  this  tribunal  as  it  ever  can  be 
hereafter,  by  any  other  or  different  form  of  procedure.  It  would, 
therefore,  seem  to  be  incumbent  upon  the  court  now,  finally  to 
dispose  of  the  whole  matter,  as  well  on  behalf  of  the  defendant  as 
on  the  part  of  the  plaintiff.  To  stop  short  with  decreeing,  that 
the  deed  of  the  15th  of  June  should  be  annulled,  w^ould  be  to  dis- 
pose of  no  more  than  the  one-half  of  the  matter  in  dispute.  It 
would  be  leaving  the  claim  of  the  defendant,  which  has  been  so 
fully  developed  by  the  pleading  and  proofs,  to  be  determined  at  a 
future  day,  and  most  probably  between  other  parties  ;  the  defend- 
ant, if  she  lives,  on  the  one  hand,  and  the  representatives  of  the 
plaintiff  on  the  other,  who  may  be  very  numerous ;  and  the  proofs, 
which  are  now  strong  and  satisfactory,  may  be  then  very  much 
wasted,  or  totally  lost. 

There  are  many  cases  in  which  this  court,  in  order  to  dispose 
of  the  whole  matter  in  controversy,  grants  the  relief  to  which  the 
plaintiff  has  shewn  himself  to  be  entitled  upon  terms.  No  one  is 
allowed  to  take  a  fraudulent  advantage  of  the  weakness  or  neces- 
sities of  another.  As  in  cases  of  sales  by  expectant  heirs  ;  in 
cases  between  guardian  and  ward  ;  in  cases  of  usury,  and  the 
like.  But  in  all  such  instances,  when  the  court  grants  the  relief 
prayed,  it  is  upon  the  terms,  that  the  plaintiff  who  asks  equity 
shall  do  equity.  And  therefore,  the  fraudulent  securities  are 
allowed  to  stand  for  what  is  really  due,  or  they  are  vacated  only 
upon  condition,  that  the  plaintiff  performs  that  which  in  equity  and 
conscience  he  ought  to  perform. (z^)  Upon  these  principles  this 
fraudulent  conveyance  of  the  loth  of  June  might  be  vacated  only 
upon  the  condition,  that  the  plaintiff  should  now,  in  conformity 
with  her  promise,  make  a  settlement  upon  the  defendant. 


(p)  Browne  v.  Browne,  1  H.  &.  J.  430.— (?i')  Twisleton  v.  Griffith,  1  P.Will.  310; 
Hylton  V.  Hylton,  2  Ves.  548 ;  Nesbit  v.  Ncsbit,  2  Cox.  183 ;  Wharton  v.  May, 
5  Ves.  27. 


404  COLEGATE  L).  OWINGS'  CASE. 

On  a  proper  bill  to  account,  after  a  decree  to  account,  both  parties 
are  considered  as  actors,  and  therefore,  according  as  the  balance 
may  be  shewn,  there  may  be  a  decree  in  favour  of  the  defendant, 
or  in  favour  of  the  plaintiff. (a:)  But  it  is  not  essentially  necessary, 
in  other  cases,  that  the  decree  should  directly  respond  to  the  special 
l^rayer  of  the  bill,  by  merely  denying  relief  upon  the  case ;  or  by 
granting  it  to  the  plaintiff,  either  conditionally  or  partially,  or 
entirely  as  prayed.  The  matter  in  controversy  being  fully  devel- 
oped, a  decree  may,  in  several  instances,  be  framed  to  meet  the 
case  disclosed,  altogether  apart  from  the  relief  which  the  plaintiff 
asks  for  himself. (?/)  As  where  a  bill  is  filed  against  two  or  more 
defendants,  and  it  appears  that  some  of  them  are  answerable  only 
in  the  second  degree,  that  is,  as  agents  of  a  principal ;  in  such 
case  the  principal  will  be  first  charged,  and  the  agents  only  in  the 
second  degree,  or  upon  the  default  of  the  principal  ;(c)  and  so  too, 
where  it  appears  that  one  is  principal,  and  the  others  are  sureties, 
the  court  will,  if  called  on  when  about  to  give  the  plaintiff  the 
relief  he  seeks,  go  on  to  decree  over  as  against  the  one  w'ho  is 
principal,  that  in  case  the  decree  in  favour  of  the  plaintiff  is  satis- 
fied by  the  sureties,  they  shall  be  reimbursed  by  their  principal,  (a) 
And  where  there  are  two  or  more  defendants,  a  decree  may  be 
passed  as  between  any  two  of  them,  when  a  case  is  made  out 
between  them  by  evidence  arising  from  the  pleadings  and  proofs 
between  the  plaintiff  and  defendants. (5)  And  also  where,  on  a  bill 
for  a  specific  performance,  the  defendant  proves  an  agreement 
different  from  that  insisted  on  by  the  plaintiff,  he  may  have  a  decree 
upon  his  answer  submitting  to  perform  the  agreement ;  and  this 
without  a  cross-bill,  which  was  formerly  deemed  necessary. (c) 
And  it  has  been  the  practice  of  this  court  in  similar  cases,  without 
a  cross-bill,  to  decree  as  w^ell  in  favour  of  the  defendant,  as  of  the 
plaintiff,  where  it  appeared  from  the  nature  of  the  agreement  or 
transaction  between  them,  that  each  was  bound  to  paj  money  or 
to  perform  some  act  for  the  benefit  of  the  other,  (c?)  And  even  a 
direct  decree  in  favour  of  the  plaintiff  may,  in  its  consequences, 

(x)  Done's  case,  1  P.  Will.  263;  Anonymous,  3  Atk.  691 ;  Honvood  v.  Schmedes, 
12  Ves.  316 ;  Bodkin  v.  Clancy,!  Ball  &  Bea.  217 ;  Davis  v.  Walsh,  2  H.  &  J.  329 ;  1S25, 
ch.  1.5S. — (y)  Johnson  v.  Johnson,  1  Mun.  554,  note. — (z)  The  Charitable  Corporation 
V.  Sutton,  9  Mod.  358  ;  2  Atk.  406.— (a)  Walker  v.  Preswick,  2  Ves.  622  ;  Taylor  i'. 
Ficklin,  5  Mun.  25;  McNiel  i».  Baird,  6  Mun.  316.— (6)  Chamley  v.  Dunsany, 
2  Scho.  8c  Lefr.  709,  718  ;  Corny  v.  Caulfield,  2  Ball  £i  Bea.  255.— (c)  Fife  v.  Clay- 
ton, 13  Ves.  548;  Higjinson  f.  Clowes,  15  Ves.  525. — (d)  Dorsey  r.  Campbell, 
ante,  356. 


COLEGATE  D.  OWINGS'  CASE.  405 

operate  as  a  decree  binding  his  interests  in  like  manner  as  if  it  had 
been  passed  directly  against  him.  For  it  is  now  established,  that 
if  a  bill  filed  by  a  mortgagor  for  redemption,  is  dismissed,  the 
money  not  being  paid  at  the  time  specified  in  the  decree  for 
redemption,  that  operates  as  a  foreclosure ;  and  is  equivalent  to  a 
decree  for  a  foreclosure. (e)  Or  there  maybe  a  decree  against  both 
parties,  as  where  the  contest  is  as  to  some  private  right  of  property-, 
and  it  appears  from  the  proofs,  that  the  title  is  in  neither,  but  in 
the  State,  both  parties  may  be  perpetually  enjoined  from  usino-  the 
property  to  the  prejudice  of  the  public. (y') 

In  such  cases  there  can  be  no  danger  of  surprise,  or  want  of 
opportunity  to  adduce  proof;  because  the  indirect,  inverted,  or 
constructive  decree,  is  confined  to  that  subject  alone,  which  the 
parties  themselves  have,  by  their  pleadings,  spread  before  the  court. 
Here  the  bill  and  answer  disclose  the  whole'  matter  in  dispute 
relative  to  the  promise  of  the  plaintiff,  as  fully  as  it  could  be  done 
by  a  cross-bill.  The  defendant  not  only  sets  out  and  relies  upon 
the  promise  of  the  plaintiff,  but  attempts  to  sustain  the  deed  of  the 
15th  of  June,  upon  the  ground  of  its  being  a  mere  fulfilment  of 
that '  promise.  Thus  representing  the  promise  as  the  original 
contract.  This  allegation  of  the  defendant  has  been  put  in  issue 
as  a  material  part  of  the  subject  in  controversy ;  and  like  every 
other  part  of  the  matter  in  issue,  it  may,  without  the  unnecessary 
circuity  and  expense  of  a  cross-bill,  be  met  by  such  a  decree  as 
justice  requires,  either  in  favour  of,  or  against  the  plaintiff. (g-) 

Here  again,  however,  we  are  met  by  another  obstacle,  arising 
from  the  present  unsound  intellectual  condition  of  the  plaintiff. 
And  that  too,  whether  the  decree  in  her  favour  be  upon  terms  ;  or 
it  be  in  part  against  her.  But  a  change  in  th^  mental  condition  of 
a  contracting  party,  by  his  becoming  afterwards  a  lunatic,  certainly 
ought  not  to  release  him  from  his  liability.  And  it  has  accordingly 
been  held,  that  the  rights  of  the  parties  remain  unchanged  by  such 
an  act  of  God.  The  only  difficulty  is  how  to  come  at  the  remedy. 
If  the  legal  estate  is  vested  in  trustees,  a  court  of  equity  ought  to 
decree  a  performance ;  but  if  it  be  vested  in  the  lunatic  himself, 
that,  it  was  formerly  held,  might  be  an  insuperable  obstacle  to  any 
adequate  relief  here,  because  this  court  could  by  its  ordinary  powers 


(e)  Stuart  r.  Worrall,  1  Bro.  C.  C.  581 ;  The  Bishop  of  Winchester  v.  Paine, 
11  Yes.  199.— {/)  Penn  v.  Ld.  Baltimore,  1  Ves.  454;  Barclay  r.  Russell,  3  Ves. 
436 ;  Rex  v.  Leigh,  4  Burr.  2146.— (g)  Harding  v.  Handy,  11  Wheat.  120  ;  Stewart 
V.  Mechanics  and  Farmers  Bank,  li)  John.  505. 


406  COLEGATE  D.  OWINGS'  CASE. 

only  give  relief  by  decreeing  a  conveyance,  which  the  lunatic 
could  not  be  ordered  to  make,  because  of  his  incapacity  to 
contract.  (A) 

But  here,  although  the  legal  estate  is  vested  in  the  plaintiff  her- 
self; yet  if  the  matter  were  left  at  law  no  relief  could  there  be 
obtained  against  the  plaintiff  during  her  life ;  nor  could  a  specific 
performance  be  obtained  at  any  time  against  any  one  at  law : 
therefore,  from  the  very  nature  of  the  case,  the  relief  necessary  to 
meet  it,  can  only  be  obtained,  if  at  all,  in  a  court  of  equity.  It  is 
laid  down,  that  if  a  man  by  age,  or  disease  is  reduced  to  a  state 
of  debility  of  mind,  which  though  short  of  lunacy,  renders  him 
unequal  to  the  management  of  his  affairs,  the  court  will,  in  respect 
of  his  infirmities,  appoint  a  guardian  to  answer  for  him,  or  to  do 
other  acts,  as  his  interests,  or  the  rights  of  others  may  require. (i) 
And  it  is  said,  that  where  one  who  could  not  be  proved  a  lunatic 
was  relieved  from  a  deed  obtained  of  him  by  fraud  and  imposition 
upon  his  weakness,  it  was  further  ordered,  that  he  should  not  exe- 
cute any  future  deed,  but  with  the  consent  of  the  court. {j) 

It  was  upon  these  authorities,  that  I  passed  the  order  of  the 
17th  of  April  last.  I  deemed  it  then  necessary  to  extend  to  the 
plaintiff  the  especial  protection  of  the  court  ;  because  of  her  age 
and  infirmities.  And  if  by  reason  of  that  infirmity  merely,  the 
court  can  in  no  way  cause  that  to  be  done,  v.-hich  when  in  a  sound 
state  of  mind  she  had  bound  herself  to  do,  the  most  manifest 
injustice  might  ensue  ;  and  that  too  not  from  any  substantial,  but 
merely  because  of  a  technical  or  formal  objection.  If,  as  has  been 
said,  this  court  can  declare,  that  she  shall  not  hereafter  execute  any 
deed  without  its  consent ;  the  converse  of  the  proposition  seems 
necessarily  to  follow-^that  this  court  can  by  its  consent  or  decree 
direct  a  conveyance  to  be  made  by  her  to  the  defendant  according 
to  the  promise  by  which  she  is  bound. 

There  can  be  no  doubt,  that  a  specific  execution  of  this  promise 
would  be  decreed  against  the  legal  representatives  of  the  plaintiff 


(h)  Owen  v.  Davies,  1  Ves.  82;  Pegge  v.  Skynner,  1  Cox.  23;  Hall  v.  Warren, 
9  Ves.  611 ;  Shelf.  Lun.  429.— (i)  Levingr.  Caverly,  Prec.  Chan.  229  ;  Sheldon  v. 
Aland,  3  P.  Will.  Ill,  note  ;  Bird  v.  Lefevre,  4  Bro.  C.  C.  100;  Wilson  v.  Grace, 
14  Ves.  172  ;  Attorney  General  r.  Waddington,  1  Mad.  Rep.  321 ;  Hovvlett  v.  Wil- 
draham,  5  Mad.  423  ;  Wartnaby  v.  Wartnaby,  1  Jac.  Rep.  377  ;  Ex  parte  Clarke^ 
2  Russ.  575  ;  Chambers  v.  Donaldson,  9  East,  471 ;  Whitehornr.  Hines,  1  Mun.  557; 
Horner  v.  Marshall,  5  Mun.  466;  1  Fonb.  64;  Mitf.  Plea.  103;  Prac.  Reg.  71. 
{j)  Lord  Donegal's  Case,  2  Ves.  408. 


COLEGATE  D.  OWIXGS'  CASE.  407 

if  she  were  dead.(/t)  And  it  is  equally  clear,  that  if  she  were  now 
in  her  sound  mind  she  herself  might  comply  with  this  promise 
either  by  a  last  will  devising  her  property  to  the  defendant;  or  by 
a  deed  to  take  effect  after  her  deatli.(/)  But  she  is  not  now,  nor 
is  she  ever  likely  again  to  be  in  a  mental  condition,  understand- 
ingly  of  herself,  to  execute  any  such  instrument  as  can  pass  any 
right  in  her  property.  It  has,  however,  been  expressly  provided, 
that  persons  non  compos  mentis  seized  or  possessed  of  any  lands 
bound  by  an  agreement  to  convey,  made  by  some  person  having  a 
right  to  make  such  agreement,  and  therefore  liable  to  a  decree  for 
conveyance  on  a  suit  for  specific  performance,  shall  convey  and 
assure  such  lands  in  such  manner  as  the  Court  of  Chancery  shall 
direct ;(/«.)  and  that  in  all  cases  where  a  decree  shall  be  made  for  a 
conveyance,  and  the  party  shall  neglect  to  comply  therewith,  such 
decree  shall  be  considered  to  have  the  same  operation  as  if  the 
conveyance  had  been  executed  conformably  to  such  decree,  (n) 

Upon  the  whole,  I  arh,  therefore,  of  opinion,  that  there  is  now 
no  other  course  left  but  to  appoint  a  guardian  for  the  plaintiff,  who 
shall  be  directed  to  execute,  in  her  name,  to  the  defendant  such  a 
deed  as  shall  be  deemed  a  sufficient  specific  performance  of  her 
promise,  to  take  effect  after  her  death. 

Whereupon  it  is  decreed,  that  the  said  defendant,  Charlotte  C. 
D.  Owmgs,  be  and  she  is  hereby  directed  and  required  forthwith 
to  brino-  into  this  court  the  orisrinal  instrument  of  writing  in  the 

o  o  o 

proceedings  mentioned,  purporting  to  be  a  deed  made  by  the  said 
plaintiff,  ColegateD.  Oz«w?o-s,  unto  the  said  defendant,  Charlotte  C. 
D.  Oivings,  on  the  15th  day  of  June"  1824,  to  be  cancelled  and 
annulled ;  and  the  same  is  hereby  declared  to  be  null  and  void ; 
and  the  record  which  hath  been  made  of  the  said  instrument  of 
writing  among  the  land  records  of  Baltimore  County  Court  shall  be 
and  the  same  is  hereby  declared  to  be  utterly  void  and  of  no  effect 
whatever,  because  of  the  said  instrument  of  writingr  having  been 
obtained  from  the  said  plaintiff  Colegate  D.  Owings  by  fraud  and 
at  a  time  when  she  was  non  compos  mentis. 

And  it  is  further  decreed,  that  William  Gwynn  of  the  city  of 
Baltimore  be  and  he  is  hereby  appointed  guardian  of  the  said 
plaintiff  Colegate  D.  Owings  for  the  purpose,  and  with  full  power 


(k)  Goilmere  v.  Battison,  1  Vern.  4S.— (/)  Drakeford  v.  Wilks,  3  Atk.  540. 
(m)  1773,  ch.  7,  s.  1 ;  4  Geo.  2,  c.  10;  Kilt.  Rep.  249;  Bullock  v.  Bullock,  1  Jac. 
8t  Wal.  .5S3.— (n)  17S5,  ch.  72,  s.  13;  1S26,  ch.  1-59. 


408  COLEGATE  D.  OWINGS'  CASE. 

and  authority  to  make,  execute,  acknowledge,  and  deliver  accord- 
ing to  law  a  deed  of  conveyance  as  hereinafter  described,  in  the 
name  and  behalf  of  the  said  plaintiff  Colegate  D.  Owings,  unto  the 
said  Charlotte  C.  D.  Owings. 

And  it  is  further  decreed,  that  the  said  plaintiff  Colegate  D. 
Owings  forthwith  execute,  acknowledge,  and  deliver,  according  to 
law,  by  her  said  guardian  William  Gwynn,  unto  the  said  defendant 
Charlotte  C.  D.  Owings  a  good  and  sufficient  deed,  thereby  con- 
veying all  the  real  estate  of  the  said  plaintiff  Colegate  D.  Owings 
in  the  proceedings  mentioned,  called  "  John  Sf  Thomas^  Forest,^^ 
unto  the  said  defendant  Charlotte  C.  D.  Owings,  her  heirs  and 
assigns  for  ever ;  and  also  by  the  same  deed  conveying,  transferring, 
and  making  over  unto  the  said  defendant  Charlotte  C.  D.  Owings, 
her  executors,  administrators  and  assigns,  all  the  personal  property 
of  the  said  plaintiff  Colegate  D.  Owings,  which  shall  be  and 
remain  at  the  time  of  her  death.  And  in  the  said  deed  of  convey- 
ance it  shall  be  expressly  stipulated  and  declared,  that  the  same 
shall  in  no  respect  take  effect  or  have  any  force  or  operation  what- 
ever during  the  lifetime  of  the  said  plaintiff  Colegate  D.  Owings  ; 
but  the  same  shall  take  effect  and  be  in  full  force  and  operation 
upon  and  immediately  after  the  death  of  the  said  plaintiff  Colegate 
D.  Owings.  And  it  shall  be  further  expressly  stipulated  and 
declared  in  the  said  deed  of  conveyance,  that  if  the  said  defendant 
Charlotte  C.  D.  Owi7igs  shall  die  without  leaving  any  lawful  issue, 
in  the  lifetime,  and  before  the  death  of  the  said  plaintiff  Colegate 
D.  Owings,  then  and  in  that  case  the  said  deed,  of  conveyance  and 
every  part  thereof  shall  be  utterly  null  and  void  to  all  intents  and 
purposes  whatever. 

And  it  is  further  decreed,  that  the  said  defendant  Charlotte  C.  D. 
Owings  pay  unto  the  said  plaintiff  Colegate  D.  Owings  her  full 
costs  expended  in  this  suit,  to  be  taxed  by  the  register. 


Soon  after  the  passing  of  this  decree  the  plaintiff  died,  and  yet 
an  appeal  was  prayed  in  her  behalf,  and  the  case  taken  to  the 
Court  of  Appeals.  After  which,  by  a  petition  signed  by  one  of  her 
solicitors  the  court  was  asked  to  pass  an  order  directing  the  defend- 
ant to  pay  the  costs  as  taxed  by  the  register. 

Sth  J\'ovember,  1828. — Bland,  Chancellor. — It  may  not  be  amiss 
here  to  observe,  by  the  way,  that  in  England  an  appeal  from  a 
decree  in  chancery  may  be  had  at  any  time  within  five  years,  with 


COLEGATE  D.  OWINGS'  CASE.  409 

a  saving  in  favour  of  persons  71071  compos  mentis. {0)  Here  it  is 
declared,  that  all  appeals  shall  be  made  and  entered  within  nine 
months  from  the  time  of  making  the  decision,  and  not  afterwards  ; 
unless  it  be  alleged  on  oath,  that  such  decree  was  obtained  by- 
fraud  or  through  mistake  ;(p)  but  there  is  no  saving  in  favour  of 
persons  non  compos  mentis. 

Where  a  decree  has  been  passed,  as  in  this  instance,  affecting 
as  well  the  real  as  the  personal  estate  of  the  parties,  and  the  suit 
abates  by  the  death  of  either  of  them,  as  the  realty  passes  to  the 
heirs  and  the  personalty  to  the  administrator  or  executor  of  the 
deceased,  in  order  to  embrace  the  whole  subject  of  the  decree,  it 
should  be  revived  by  or  against  both  the  heirs  and  personal  repre- 
sentatives of  the  deceased  party.  But  such  a  comprehensive  revi- 
val of  the  suit  is  not  in  all  cases  indispensably  necessary,  as  each 
class  of  the  representatives  of  the  deceased  may  revive  and  prose- 
cute the  suit  to  the  extent  of  their  respective  interests,  and  no 
further. (g)  It  is  said,  that  in  England  a  suit  cannot  be  revived 
merely  to  recover  costs  not  taxed  :  this  however  has  been  regarded 
there  as  a  very  odd  rule  ;(r)  and  having  met  with  no  instance  of 
its  having  been  acted  upon  by  this  court,  I  feel  no  hesitation  in 
rejecting  a  rule  which  has  been  so  often  condemned,  and  which 
appears  to  be  now  reluctantly  tolerated  by  the  tribunal  in  which  it 
originated.  Be  that  however  as  it  may,  in  this  case  the  costs,  it  is 
alleged,  have  been  taxed,  and  therefore  the  amount  of  them,  as  a 
liquidated  decreed  debt,  on  the  death  of  the  plaintiff  passed  to  her 
personal  representative.  Consequently,  in  order  to  recover  that 
debt  this  decree  may  well  be  revived  by  her  executor  or  adminis- 
trator alone ;  but  no  attempt  appears  to  have  been  as  yet  made  so 
to  revive  it. 

Whereupon  it  is  ordered,  that  the  said  petition  be  and  the  same 
is  hereby  dismissed  with  costs. 


After  which  the  case  having  been  brought  before  the  Court  of 
Appeals,  the  appeal  was  dismissed.  Owings  v.  Owings,  3  G.  &  J.  1. 

(o)  Shelf.  Lun.  424.— (p)  1826,  ch.  200,  s.  14.— (5)   Ferrers  r.  Cherry,  1  Eq.  Ca. 
Abr.  4.— (r)  2  Mont.  Dig.  524. 

52 


410  MACKUBIN  V.  BROWN. 


MACKUBIN  V.  BROWN. 

In  a  creditor's  suit  the  decree  for  a  sale  of  the  realty,  being  founded  on  the  fact  of  the 
insulHciency  of  the  personal  estate,  necessarily  establishes  that  point ;  and,  conse- 
quently, after  that,  the  coiTectness  of  the  administrator's  accounts  cannot  be  im- 
peached for  the  purpose  of  turning  a  creditor,  who  had  come  in  under  the  decree, 
away  from  the  realty  to  seek  payment- of  the  personalty. 

After  the  notice  to  creditors  had  been  given,  a  sale  had  been  made,  and  a  distribution 
of  the  proceeds  had  been  awarded  to  creditors,  claimants,  who  had  been  infants, 
were  allowed  to  come  in  soon  after  they  attained  their  full  age,  and  to  have  a  fur- 
ther sale  of  the  realty  made  for  the  satisfaction  of  their  claims ;  and  that  too,  after 
a  partition  had  been  made  of  it  among  the  heirs  of  the  deceased  debtor. 

A  trustee,  under  a  decree  for  the  sale  of  property,  who  fails  to  bring  into  court,  or 
to  account  for  the  proceeds  of  sale,  or  the  bonds  and  notes  taken  by  him  to  secure 
the  payment  of  the  purchase  money,  may  be  charged  with  the  whole  amount  of  the 
proceeds  according  to  his  report  of  the  sales.  But,  by  thus  holding  the  trustee 
liable,  the  court  does  not  thereby  virtually  exonerate  any  one  else. 

A  trustee  cannot  be  permitted  to  apply  a  part  of  the  proceeds  of  sale  without  any 
authority  from  the  court,  and  then  to  come  in  to  have  it  allowed  as  a  set  off  against 
the  claim  of  the  party  to  whom  it  was  paid. 

It  appears,  that  William  Hammond  of  Ann  Arundel  county,  by 
his  will  and  codicil,  made  on  the  24th  March  1807,  ?ifter  devising 
several  parcels  of  his  land  to  particular  persons,  and  emancipating 
some  of  his  negroes,  directed,  that  all  the  residue  of  his  real  estate 
should  be  sold  by  his  executors  for  the  payment  of  his  debts ;  and 
the  surplus  of  the  proceeds  to  be  invested  and  applied  in  satisfac- 
tion of  legacies,  as  therein  specified  among  the  children  of  his  sis- 
ters ;  and  he  appointed  Basil  Brown  and  William  H.  Marriott  his 
executors.  After  w^hich  he  died  ;  his  will  was  proved  according 
to  law ;  and,,  on  the  7th  of  October  1807,  his  executors  by  a  note 
addressed  to  the  register  of  wills  renounced  the  executorship  ;(c)  and 
administration,  with  the  will  annexed,  was  immediately  granted  to 
Basil  Brown.  And,  on  the  same  day,  Basil  Brown  filed  his  peti- 
tion in  this  court,  stating  these  facts  and  alleging,  that  he  was 
interested  in  the  estate  as  appeared  by  the  wall,  and  prayed  that  a 
trustee  might  be  appointed  to  carry  the  will  into  effect. 

Whereupon,  and  according  to  the  act  of  assembly,(6)  a  decree 
w^as  passed  ex  parte ^  on  the  12th  of  October  1807,  directing  the 
real  estate  of  the  late  William  Hammond  to  be  sold ;  and  Basil 


(a)  1798,  ch.  101,  sub-ch.  3,  s.  7  ;  Dep.  Com.  Gui.  69  ;  3  Bac.  Abr.  43.— (6)  1786i, 
ch.  72,  s.  4. 


MACKUEIN  V.  BROWN.  42  ^ 

Brown  was  appointed  the  trustee  to  make  the  sale  upon  the  terras 
that  the  purchaser  should  pay  one-fifth  of  the  purchase  raoney  on 
the  day  of  sale,  and  give  bond  with  approved  surety  for  paying 
the  residue  in  four  equal  annual  instalments  with  interest  from  the 
day  of  sale.  In  virtue  of  this  decree  the  whole  was  sold  at  four 
different  times.  The  last  of  which  sales  was  made  on  the  25th  of 
August  1809  ;  and  all  of  them  were  finally  ratified.  It  does  not 
appear,  from  any  thing  to  be  found  among  the  proceedings,  that 
any  part  of  the  purchase  money,  or  any  bond  of  any  one  of  the 
purchasers,  except  that  of  Lewis  Buvally  was  ever  brought  into 
court  by  this  trustee  jBrotwi ;  who  died  some  short  time  previous 
to  the  15th  of  June  1815.  It  appears,  that  the  trust  reposed  in 
Basil  Brown  having  been  left  by  him  unfinished  at  the  time  of  his 
death,  Thomas  H.  Bowie  v,'a.s,  on  the  15th  of  June  1815,  appointed 
to  complete  the  trust ;  who  also  having  died  before  it  was  finally 
closed,  Israel  Davidson  was,  on  the  5th  of  October  1825,  appointed 
as  his  successor  for  that  purpose. 

After  the  death  of  Basil  BrowUy  Richard  Mackubin,  on  behalf 
of  himself  and  the  other  creditors  of  Brown,  on  the  12th  of  June, 
1816,  filed  this  bill  here,  in  which  he  alleges,  that  Brown  had  died 
intestate  without  leaving  a  sufficiency  of  personal  estate  to  pay  his 
debts ;  and  thereupon  prayed,  that  his  real  estate  might  be  sold  for 
that  purpose.  The  heirs  of  Brown,  some  of  whom  were  infants, 
were  alone  made  parties  ;  and,  on  the  coming  in  of  their  answers, 
admitting  the  insufficiency  of  the  personalty,  a  decree  was  passed, 
on  the  28th  of  June,  1816,  appointing  Matthias  Hammond,  who 
was  one  of  the  administrators  of  Basil  Brown,  to  make  sale  of  his 
real  estate  for  the  payment  of  his  debts ;  and  upon  the  death  of 
Matthias,  Rezin  Hammond  was  appointed  trustee  to  complete  the 
trust,  and  a  part  of  the  real  estate  of  Basil  was  accordingly  sold. 
Public  notice  was  given  as  usual  to  the  creditors  of  the  late  Basil 
Brown,  to  bring  in  their  claims,  and  the  time  limited  for  them  to 
do  so  had  long  elapsed. 

On  the  5th  of  July,  1826,  Eli  Marriott  and  Cornelius  Shipley 
and  Sarah  his  wife,  filed  their  petition  in  this  case,  in  which,  after 
setting  out  those  circumstances,  they  state,  that  Eli  and  Sarah  are 
the  children  of  Mary  Marriott,  the  sister  of  the  late  William  Ham- 
mond, and,  as  such,  legatees  under  his  will ;  that  the  shares  to 
which  they  were  entitled,  were  adjusted  and  awarded  to  them  in 
that  case ;  that  Basil  Broivn,  who  as  trustee  made  sale  of  the  late 
William  Hammond^s  estate,  received  the  purchase  money,  but  had 


412  MACKUBIN  V.  BROWN. 

not,  during  his  life,  nor  had  his  administrators,  since  his  death, 
paid  to  them  their  legacies  so  bequeathed  and  assigned  to  them  ; 
and  that  these  petitioners,  Eli  and  Sarah,  having  been  infants  and 
but  recently  attained  their  full  age,  were  therefore  prevented  from 
making  an  earlier  application.  Whereupon  they  prayed,  that  the 
present  trustee  might  be  ordered  to  make  report  of  his  proceedings ; 
that  they  might  be  admitted  to  come  in  as  creditors  under  the 
decree  ;  that  the  proceeds  of  the  sales  already  made,  might  be 
applied  to  the  payment  of  their  claims  rateably  with  other  claims  ; 
that  the  trustee  might  be  ordered  to  make  sale  of  so  much  more  of 
the  real  estate  as  would  be  sufficient  to  satisfy  the  claims  against 
the  late  Basil  Brown  ;  and  that  they  might  have  such  other  relief 
as  the  nature  of  their  case  required)  &c. 

Qth  July,  1826. — Bland,  Chancellor. — Ordered,  that  the  peti- 
tioners be,  and  they  are  hereby  permitted  to  come  in  as  plaintiffs 
and  creditors  in  this  case,  as  prayed ;  subject  to  all  legal  objections 
that  may  be  made  against  their  claims.  And  it  is  further  Ordered, 
that  Rezin  Hammond,  the  trustee,  be,  and  he  is  hereby  directed  and 
required  to  make  report  to  this  court  of  the  proceedings  had  under 
the  said  decree  for  the  sale  of  the  real  estate  of  the  late  Basil 
Brown.  And  it  is  further  Ordered,  that  the  said  trustee  proceed  to 
make  sale  of  so  much  more  of  the  said  real  estate  as,  in  addition 
to  the  sales  heretofore  made,  will  be  sufficient  to  discharge  all  the 
claims  that  have  been  exhibited  against  the  said  estate. 


On  the  9th  of  August,  1826,  Samuel  Vansant  and  Mary  Ann 
his  wife,  filed  their  petition,  alleging  that  she  was  another  of  the 
children  of  Mary  Marriott,  and  as  such  a  legatee  under  the  will 
of  the  late  William  Hammond.  In  other  respects  the  matter,  state- 
ments, and  prayer  of  this  petition  were  similar  to  that  of  Marriott 
and  Shipley.  On  the  25th  of  January,  1827,  Marriott  and  Shipley 
filed  another  petition,  alleging  that  the  trustee  had  made  a  report 
of  the  proceedings  under  the  decree,  but  had  taken  no  steps  for  a 
sale;  and  praying  that  he  might  be  ordered  to  proceed  to  sell 
without  delay ;  and,  in  respect  to  the  great  lapse  of  time,  that  the 
sale  might  be  for  cash  ;  which  was  on  the  next  day  ordered  accord- 
ingly. On  the  6th  of  March  following,  they  ffied  a  third  petition, 
in  which  they  allege,  that  a  copy  of  their  last  petition,  and  the 
order  thereon,  had  been  served  on  the  trustee,  but  that,  as  they 
verily  believed,  he  had  taken  no  steps  to  sell  the  lands,  and  that  he 
did  not  intend  to  execute  his  trust.     Whereupon  they  prayed,  that 


MACKUBIN  V.  BROWN.  4]  3 

he  might  be  removed,  and  another  trustee  appointed  in  his  place. 
And  accordingly,  by  an  order  of  the  8th  of  the  same  month,  he 
was  removed,  and  jYicholas  Brewer,  jun'r,  appointed  in  his  stead, 
who  gave  bond,  and  proceeded  to  execute  the  trust. 

But  on  the  16th  of  April,  1826,  Thomas  I.  Stockett  and  Clarissa 
his  wife,  filed  their  petition,  in  which  they  stated,  that  Clarissa  was 
one  of  the  children  of  the  late  Basil  and  Henrietta  Brown  ;  and, 
as  such,  was  entitled  to  one-eighth  part  of  the  sum  bequeathed  by 
the  late  William  Hammond  to  Henrietta^  and  also  to  one-eisrhth 
part  of  the  real  estate  of  the  late  Basil ;  and  they  objected  to  any 
further  sale  being  made  of  the  real  estate  of  the  late  Basil  as  prayed 
by  the  petitioners  Marriott  and  Shipley,  and  Vansant  and  wife ; 
first,  because,  their  claims  were  not  brought  in  within  the  time 
limited  by  the  notice  to  the  creditors  of  the  late  Basil ;  and  his 
creditors,  who  had  come  in  according  to  that  notice,  having  been 
satisfied,  a  partition  of  the  residue  of  his  real  estate  had  been,  long 
since,  made  among  his  heirs,  of  whom  Clarissa  was  one  :  secondlv, 
because  the  personal  estate  left  by  the  late  Basil  was  sufficient  to 
pay  all  his  debts,  if  it' had  been  properly  administered ;  but  it  had 
been  wasted ;  and  the  administrator  alone  was  now  liable  to  these 
claimants  :  and  thirdly,  because  the  late  Basil  ought  not  to  be 
charged  with  these  claims,  since,  although  he  sold  the  real  estate 
of  the  late  William  Hammond,  he  had  not  received  the  purchase 
money,  which,  in  fact,  had  been  received  by  his  administrator, 
Matthias  Hammond.  The  petitioners  further  stated,  that  the  trustee, 
JS%cholas  Brewer,  had  advertised  the  real  estate  of  the  late  Basil 
Brown  for  sale,  which  would  take  place  in  a  few  days.  Where- 
upon they  prayed,  that  the  sale  might  be  suspended ;  that  the 
claims  might  be  rejected;  and  that  they  might  have  such  relief  as 
the  nfiture  of  their  case  required,  Sec. 

20th  April,  1827. — Bland,  Chancellor. — Ordered,  that  the  matter 
of  the  aforegoing  petition  be  heard  on  the  eighteenth  day  of  May 
next,  or  earlier  with  the  consent  of  parties  ;  and  that  depositions 
in  relation  thereto,  taken  before  the  commissioners  appointed  to 
take  testimony  in  the  city  of  Annapolis  or  before  any  justice  of  the 
peace  elsewhere,  on  giving  three  days'  notice  as  usual,  be  read  in 
evidence  on  the  hearing.  And  it  is  further  ordered,  as  prayed, 
that  the  said  JVicholas  jBrezfer,  jun'r,  the  trustee,  suspend  all  further 
proceedings  until  further  order :  Provided,  that  a  copy  of  this  order 
be  served  on  the  said  trustee,  and  also  on  the  former  petitioners 
Eli  Marriott  and  Cornelius  Shipley  and  Sarah  his  wife,  and  Samuel 


414  MACKUBIN  V.  BROWN. 

Vansant  and  Mary  Ann  his  wife,  or  their  sohcitors  on  or  before 
the  twenty-third  instant. 


After  which  the  matter  was  brought  before  the  court,  and  having 
been  discussed  by  the  solicitors  of  the  parties,  the  case  was  infor- 
mally referred  to  the  auditor  for  the  purpose  of  stating  accounts 
upon  the  principles  assumed  by  the  respective  parties.  But,  as 
they  could  not  agree  as  to  some  points  deemed  important,  the  case 
W'as  again  submitted  to  the  Chancellor  for  his  instructions  upon 
the  following  questions : 

"  Can  the  heirs  at  law  of  Brown,  in  this  stage  of  the  proceed- 
ings, impeach  the  correctness  of  the  administration  accounts  ?  Are 
those  accounts  to  be  presumed  correct  until  the  contrary  is  shewn 
by  the  heirs  at  law,  or  are  the  petitioning  creditors  bound  in  the 
first  instance  to  prove  the  correctness  of  said  accounts  ?  Can  those 
accounts  be  opened  for  the  purpose  of  charging  interest  on  balances 
in  the  hands  of  the  administrators  at  any  time  prior  to  the  passing 
of  the  final  account?" 

6^/i  July,  1827.- — Blaxd,  Chayicellor. — The  decree  for  a  sale, 
having  been  founded  upon  the  fact  of  the  insufficiency  of  the 
deceased's  personal  estate  to  pay  his  debts,  has  necessarily  estab- 
lished that  point.  Therefore  the  correctness  of  the  administrator's 
accounts  cannot  now  be  impeached  by  the  heir  for  the  purpose  of 
turning  any  creditor,  who  comes  in  after  that  decree,  away  from 
the  pursuit  of  the  real  assets  under  it,  to  seek  payment  out  of  the 
personal  assets.  This  general  expression  of  his  opinion,  the 
Chancellor  conceives,  will  be  a  sufficient  answer  to  the  three  ques- 
tions submitted.  But  if  the  solicitors  have  other  views,  or  wish 
for  more  special  directions,  the  Chancellor  would  rather  hear  them 
first. 

Whereupon  it  is  ordered,  that  this  case  be  and  the  same  is  hereby 
referred  to  the  auditor  with  directions  to  state  an  account  accord- 
ingly, or  such  other  accounts  as  may  be  required  by  either  party. 


On  the  5th  of  September  1827,  the  auditor  returned  and  filed  his 
report  of  sundry  statements  made  according  to  the  nature  of  the 
case  and  as  required  by  the  parties.  To  this  report  both  parties 
excepted,  and  the  case  was  thus  again  brought  before  the  court. 

4th  October,  1827. — Bland,  Chancellor. — The  matter  of  the 
petitions  filed  in  this  case  by  Marriott  and  Shipley,  and  by  Vansant 
with  that  of  Stockett  and  wife  in  opposition  thereto  standing  readv 


MACKUBIN  V.  BROWN.  41 5 

for  hearing,  and  the  solicitors  of  the  parties  having  been  heard,  the 
proceedings  were  read  and  considered. 

Any  further  sale  of  the  real  estate  of  the  late  Basil  Brown  to 
satisfy  the  claims  of  Marriott,  Shipley,  and  Vansant,  is  opposed  by 
Stockett  and  wife  on  several  grounds. 

First,  they  rely  upon  the  lapse  of  time  as  affording  a  presump- 
tion, that  those  claims  were  either  satisfied  or  abandoned.  But  the 
fact,  that  these  claimants  were  infants,  and  have  but  lately  attained 
their  full  age,  furnishes  a  satisfactory  answer  to  this  objection. 

Secondly,  they  allege,  that  the  personal  estate  of  the  late  Basil 
Brown,  in  the  hands  of  his  administrators  was  amply  sufficient  to 
satisfy  these  claims  and  ought  to  have  been  so  applied ;  and  that 
these  claimants  cannot  be  allowed  to  proceed  against  his  real 
estate  until  the  personalty  has  been  exhausted.  This  objection,  if 
it  had  been  sustained  by  the  fact,  would  have  been  conclusive 
against  the  passing  of  the  decree  for  the  sale  of  his  real  estate. 
But,  it  is  now  entirely  too  late  to  make  such  an  objection,  after  a 
decree  expressly  grounded  upon  an  admitted  or  established  allega- 
tion of  the  insufficiency  of  the  personal  estate  to  pay  all  the  debts 
of  the  deceased.  After  such  a  decree  no  creditor,  who  may  in  all 
other  respects  be  entitled  to  come  in,  can  be  turned  away  from 
proceeding  against  the  real  estate  to  seek  payment  out  of  the  per- 
sonal estate  of  his  deceased  debtor. 

A  third  objection  is,  that  these  claimants  should  not  be  permitted 
to  come  in  as  creditors  against  the  estate  of  the  late  Basil  Brown  ; 
because,  although  he  sold,  he  did  not  receive  payment  for  the  whole 
of  the  estate  of  the  late  William  Hammond ;  and  these  claimants 
can  only  be  considered  as  creditors  of  Basil  Brown  upon  the 
ground,  that  he  received  those  proceeds,  a  portion  of  which  had 
been  allotted  to  each  of  them.  And  it  is  also  alleged,  that  a  part 
of  those  proceeds  were  collected  by  Matthias  Hammond,  one  of 
the  administrators  of  Brown,  after  his  death. 

It  has  been  the  practice  of  the  court  to  allow  a  trustee  to  make 
the  sale  in  a  manner,  and  upon  terms  different  from  those  specified 
in  the  decree,  where  the  interests  of  the  parties,  appear  to  be  in  no 
way  injured  by  doing  so.  And  those  concerned  being  alwa)'s  noti- 
fied to  shew  cause,  if  any  they  have,  why  the  sale  should  not  be 
ratified,  it  has  been  found,  that  much  good  and  no  material  injury 
has  arisen  by  sanctioning  deviations  to  this  extent  by  trustees. 
The  trustee  is  always  directed  by  a  decree,  authorizing  a  sale  upon 
credit,  to  bring  into  court  the  bonds  or  notes  taken  by  him  to  secure 


416  MACKUBIN  f.  BROWN. 

the  payment  of  the  purchase  money.  And  this  he  should  never 
fail  to  do,  if  it  be  not  attended  with  much  inconvenience,  where 
the  credit  is  long ;  because  he  thereby  relieves  himself  from  any 
responsibility  by  holding  them ;  and  enables  the  court,  in  those 
cases  where  any  of  the  parties,  may  and  choose  to  take  the  bonds 
in  satisfaction  of  their  claims,  to  have  them,  at  once  assigned  and 
delivered  over  to  them  ;  and  thus  immediately  to  put  an  end  to  the 
suit.  But  for  the  purpose  of  enabling  the  trustee  to  collect  the 
money,  when  it  becomes  due,  it  has  been  usual,  and  found  conve- 
nient to  allow^  him  to  retain  the  bonds  and  notes  in  his  own  pos- 
session.    They  are,  however,  so  held  by  him  at  his  own  risk. 

But  the  court  has  never  been  informed  by  the  trustee  Basil 
Brown,  what  became  of  the  purchase  money  arising  from  the  sales 
made  by  him.  He  has  brought  none  of  it  into  court;  nor  has  he 
brought  in  any  one  of  the  bonds  taken  by  him  for  securing  its 
payment,  except  that  of  DuvaWs,  the  amount  of  which,  it  appears, 
he  himself  afterwards  received ;  and  yet  the  whole  amount  of  all 
the  purchase  money  became  due  long  before  Brownh  death. 

It  must  be  presumed,  therefore,  in  this,  as  in  all  similar  cases, 
where  a  trustee  or  agent  undertakes  and  binds  himself  to  collect 
money,  or  to  bring  into  court  those  vouchers,  by  means  whereof  it 
may  appear  whether  he  has  collected  it  or  not,  and  fails  to  do  so, 
that  the  money  has  actually  been  collected  by  him,  and  he  must  be 
charged  with  it ;  unless  he  can  satisfactorily  shew,  that  it  had  not 
come  to  his  hands,  or  been  applied  to  his  use.  The  greatest 
inconvenience  and  the  most  serious  evils  would  arise,  if  trustees, 
appointed  by  this  court,  w^ere  not  held  strictly  accountable  for  the 
bonds  taken,  and  money  received  by  them.  They  undertake  to 
perform  duties  of  much  importance,  and  to  become  the  executive 
agents  of  the  court ;  and  therefore  must  be  rigidly  held  to  a  faithful 
discharge  of  the  trust  reposed  in  them,  in  all  that  relates  to 
the  receipt  of  money,  or  the  securities  taken  by  them  for  its 
payment,  (c) 

As  the  late  Basil  Brown  might  and  ought  to  have  collected  the 
whole  amount  of  the  purchase  money,  it  must  be  presumed  that  he 
did  so ;  and  consequently  he  must  be  held  liable  for  the  whole 
amount ;  unless  his  representatives  shew,  that  without  his  default, 
it  was  not  received  by  him,  or  that  it  did  not  come  to  the  use  of 
him  or  his  estate.     This  they  have  failed  to  do.    His  estate,  there- 

(c)  Bennett  v.  Hamill,  2  Scho.  &  Lcfr.  566. 


MACKUBIN  V.  BROWN.  4j7 

fore,  must  be  charged  with  the  whole  amount  of  the  proceeds  of 
the  sales  made  and  reported  by  him. 

But  although  a  negligent  or  unfiiithful  trustee  may  be  thus  held 
liable  for  the  whole  amount  of  any  money  which  he  undertook  and 
became  bound  to  collect,  and  of  which  he  has  failed  to  give  any 
account  whatever ;  yet  the  court,  by  holding  him  liable,  would 
not  be  understood  as  thereby,  in  any  case,  exonerating  any 
purchaser,  surety,  or  other  person,  or  subject,  from  any  liability 
or  lien  that  might  have  been  enforced  for  the  recovery  of  the  same 
money.  The  party  interested  may,  in  the  first  instance,  obtain 
satisfaction  from  such  security  ;  or  the  delinquent  trustee  may  be 
first  made  to  pay,  and  be  then  left  to  take  the  place  of  the  claimant, 
and,  so  far  as  in  equity  he  may  be  permitted  to  do  so,  to  seek  relief 
from  others  as  he  can. 

Upon  these  principles,  therefore,  it  is  Ordered,  that  the  excep- 
tions oi  Eli  Marriott  and  others,  are  sustained,  and  that  of  Stockett 
and  wife  is  rejected.  And  the  auditor's  report,  and  statements 
No.  1,  2,  3,  and  4,  are  approved;  and  the  statements  No.  5,  6, 
and  7,  are  rejected.  And  it  is  further  Ordered,  that  the  trustee, 
JVicholas  Brciver,  jun'r,  forthwith  proceed  to  make  sale  of  the  real 
estate  of  the  late  Basil  Brown,  as  directed  by  the  orders  of  the  6th 
of  July,  1826,  and  of  the  8th  of  March,  1827. 


On  the  20th  of  March,  1828,  Rezin  Hammond,  the  displaced 
trustee,  filed  his  petition,  in  which  he  states,  that  being  the  executor 
of  Matthias  Hammond,  who  was  administrator  of  Basil  Brown,  and 
trustee  for  the  sale  of  the  real  estate  of  Basil  Brown,  he  had  paid 
to  Eli  Marriott  the  sum  of  $138,  in  part  satisfaction  of  his  claim 
against  the  estate  of  the  late  Basil  Brown,  to  the  amount  of  which 
he  claims  to  be  considered  as  the  equitable  assignee  of  Eli  Mar- 
riott ;  and  prays  that  the  present  trustee  may  be  ordered  to  pay  the 
amount  to  him  out  of  the  share  awarded  to  Marriott.  This  petition 
was  submitted  without  argument. 

24^/i  March,  1828. — Bland,  Chancellor. — At  no  period,  and  in 
no  part  of  all  these  proceedings  does  it  appear,  nor  has  it  before 
been  even  intimated,  that  this  petitioner  had  any  such  claim  as  that 
now  set  up  by  him  ;  or  any  claim  whatever  against  Eli  Marriott. 
It  does  not  very  distinctly  appear,  whether  the  petitioner  claims  in 
his  own  right,  or  in  his  representative  character  of  executor.  But 
in  either  way,  if  the  claim  has  any  real  existence  whatever,  it  is  a 
mere  legal  one ;  it  has  not  a  shadow  of  equity  about  it.      It  is  for 

53 


418  WILLIAMSON  V.  WILSON. 

money  lent  and  advanced  to  Marriott,  for  which  the  petitioner  may 
sue  at  law.  But  this  delinquent  agent  of  the  court,  after  having 
been  removed,  now  asks  to  have  the  sum  he  alleges  he  has  paid 
Marriott,  allowed  as  a  payment  made  while  he  was  trustee,  witliout 
any  authority,  or  even  pretext  of  authority,  from  this  court.  Most 
certainly  it  cannot  be  allowed  to  him  as  a  payment  made  as  trustee. 
The  petitioner  takes  another  ground,  which  is,  that  he  may  be 
considered  as  an  equitable  assignee.  But  if  he  who  had  paid 
money,  as  set  forth  in  the  petition,  could  be  let  in  as  an  equitable 
assignee,  then  all  the  other  creditors  of  Marriott  must  be  allowed 
to  come  in  upon  the  same  terms.  But  that  could  never  be  per- 
mitted. Whereupon  it  is  Ordered,  that  the  petition  be  dismissed 
with  costs. 


A  sale  having  been  made  by  the  trustee,  and  ratified  by  the 
court,  the  auditor  reported  a  distribution  of  the  proceeds  among 
the  claimants,  which  was  ratified  on  the  22d  September,  1828,  and 
the  trustee  directed  to  apply  the  proceeds  accordingly,  and  the  case 
thus  finally  closed. 


WILLIAMSON  V.  WILSON. 

The  power  to  appoint  a  receiver  is  one  of  as  great  utility  as  any  which  belongs  to 

the  court,  and  is  well  established  upon  reason  and  authoritj'. 
Where  there  has  been  a  breach  of  duty  by  a  partner,  or  the  firm  has  become  insolvent, 

and  a  partner  is  wasting,  or  threatens  to  make  an  improper  application  of  the  funds, 

a  receiver  may  be  appointed  before  the  coming  in  of  the  answer. 
A  receiver  is  considered  as  an  executive  officer  of  the  court,  bound  so  to  keep  the 

property  placed  in  his  hands,  that  it  may  be  easily  traced,  and  immediately  produced 

when  called  for ;  and  on  his  failing  to  do  so,  he,  or,  on  his  death,  his  personal 

representatives  may  be  proceeded  against  in  a  summary  way. 
A  partnership  for  a  limited  period  may  be  dissolved  before  the  expiration  of  the 

specified  time  by  death  or  insolvency. 
After  a  firm  has  become  insolvent,  the  partners  are  to  be  considered  as  trustees  for 

the  benefit  of  their  creditors ;  and  therefore  a  suit  between  such  partners  may  be 

treated  as  a  creditor's  suit,  and  the  partnership  estate  collected  and  distributed 

accordingly. 
Where  evidence  in  support  of  a  claim,  in  a  creditor's  suit,  is  within  the  knowledge 

of  a  co-creditor  who  has  filed  his  claim,  and  thus  become  a  parly  to  the  suit,  he 

may  be  required  to  answer  interrogatories  on  oath. 
Where  testimony  is  proposed  to  be  taken  in  support  of  a  claim,  notice  of  the  taking 

of  it  must  be  so  given  as  that  it  may  be  presumed  to  liave  been  fully  and  correctly 

repoited  to  the  court. 


WILLIAMSON  V.  WILSON.  41 9 

The  mode  of  having  creditors  called  in,  and  their  claims  adjusted  before  the  auditor 

in  a  creditor's  suit. 
The  originally  suing  creditor's  claim  having  been  decided  upon,  or  so  much  of  it  as 

has  been  decided  upon  by  the  decree,  cannot  be  afterwards  drawn  in  question. 
The  statute  of  limitations,  or  any  other  just  opposition,  may  be  relied  on  or  made 

against  a  claim  brought  in  under  the  decree  by  any  one  of  the  original  paities,  or 

by  a  co-creditor. 
After  a  reasonable  time  a  final  account  may  be  ordered,  rejecting  all  claims  not  then 

sufficiently  authenticated. 

By  this  bill,  filed  on  the  3d  of  April,  1826,  it  is  stated,  that  the 
plaintiff  Charles  A.  Williamson,  and  the  defendants  John  B.  Wilson 
and  John  JV.  Woodard,  had  formed  a  partnership,  as  commission 
merchants  and  auctioneers  in  the  city  of  Baltimore,  on  the  7th  of 
April,  1824,  for  the  term  of  three  years  from  that  date,  by  the  name 
of  Wilson,  Williamson  ^  Co.;  that  they  gave  bond,  with  David 
Williamson  their  surety,  to  the  city  as  auctioneers ;  that  the 
business  of  the  partnership  was  carried  on  accordingly  until  the 
4th  of  January,  1826,  when  the  firm  becEime  insolvent  and  stopped 
payment ;  that  the  defendants  have  since  held,  and  retained  in 
their  possession,  exclusively,  all  the  goods,  effects,  books,  papers, 
and  vouchers  of  the  firm ;  and  are  collecting  the  debts  due,  and 
wasting  and  misapplying  the  property  of  the  partnership,  to  the 
ruin  of  the  plaintiff,  and  to  the  prejudice  of  the  creditors  of  the 
firm.  Upon  which  the  plaintiff  prayed  for  an  injunction  to  restrain 
the  defendants  from  collecting  the  debts  ;  and  that  a  receiver  might 
be  appointed  to  collect  them  and  to  take  charge  of,  and  preserve 
the  goods,  debts  and  effects  of  the  firm  for  the  benefit  of  all 
concerned.  The  bill  was  sworn  to  by  the  plaintiff  in  the  usual 
form. 

On  the  same  day  the  bill  was  filed,  it  was  submitted  to  the 
Chancellor,  upon  which  it  was  ordered,  that  David  Williamson, 
jun'r,  be  appointed  receiver;  and,  that  an  injunction  be  granted 
as  prayed.  But  leave  was  granted  to  the  defendants  to  move  for 
rescinding  the  order,  and  the  dissolution  of  the  injunction  either 
before  or  after  filing  their  answers  on  giving  five  days  notice  of 
such  motion :  and  the  register  was  directed  to  annex  a  copy  of  the 
order  to  the  writ  of  injunction. 

On  the  12th  of  the  same  month  the  defendants,  having  filed 
their  answers,  gave  notice  to  the  plaintiff,  that  they  should,  on 
the  14th  instant,  move,  as  allowed  by  the  order  of  the  3d  instant. 
All  the  material  admissions  and  allegations  of  the  answer  are 
sufiSciently  set  forth  by  the  Chancellor  in  his  view  of  the  case. 


42G  WILLIAMSON  V.  WILSON. 

On  llie  same  day,  and  together  with  the  answer  of  the  defend- 
ants, /.  8f  J.  Pogue  and  others,  as  creditors  of  the  firm,  filed 
their  petition  objecting  to  D.  Williamson  junior  being  considered 
as  a  receiver ;  and  recommending  Jacob  Schley  to  be  appointed 
in  his  stead  for  the  benefit  of  the  creditors  of  the  partnership. 
And,  on  the  next  day,  the  plaintiff  filed  exceptions  to  the  an- 
swer of  the  defendants ;  and  David  Williamson^  as  another  cre- 
ditor of  the  firm,  insisted  by  his  petition  on  the  receiver  being 
continued. 

24:th  ./ipril^  1826. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing  on  the  motion  to  rescind  the  order  appointing  a 
receiver,  the  counsel  on  both  sides  were  heard,  and  the  proceedings 
read  and  considered. 

There  have  been,  of  late,  many  applications  to  this  court  for 
the  appointment  of  a  receiver.  The  power  of  making  such  an 
appointment,  by  some,  has  been  contemplated  as,  at  least,  a  new 
exhibition  of  the  jurisdiction  of  this  court.  It  seems  to  have 
been  considered  in  the  argument  as  one  of  an  unsettled  and 
questionable  nature.  That  it  is  a  power  which  has  not,  until  of 
late,  been  very  frequently  resorted  to  may  be  admitted;  but,  there 
can  be  no  doubt  of  its  being  an  authority  properly  belonging  to 
this  court.  In  an  order,  passed  about  twenty  years  ago,  the  then 
Chancellor  speaks  of  the  power,  as  one  which  rightfully  belonged 
to  the  court,  and  respecting  which  there  was  then  no  question 
whatever. (a)  It  is  a  power  of  the  Court  of  Chancery  of  Eng- 
land, which  appears  to  have  been  very  frequently  called  into  action 
during  more  than  a  century  past.  All  the  leading  principles  in 
relation  to  it  were  v/ell  established  there,  long  before  our  revolu- 
tion ;  and  it  was  then,  and  has  ever  since  been  considered,  there  and 
here,  as  a  povv-er  of  as  great  utility  as  any  which  belongs  to  a  court 
of  chancery.  And,  that  it  is  so,  will  appear  very  evident,  from  a 
review  of  the  nature,  and  the  variety  of  the  exigencies  in  which  it 
has  been  called  into  action ;  either  to  prevent  fraud,  to  save  the 
subject  of  litigation  from  material  injury,  or  to  rescue  it  from 
inevitable  destruction. 

Much  the  greater  number  of  the  English  reported  cases,  con- 
cerning receivers,  relate  to  real  estates,  and  most  frequently  are 
such  as  have  arisen  between  mortgagors  and  mortgagees.  In 
almost  all  of  them  the  office  and  duty  of  the  receiver  have  been 

(a)  The  Wharf  Case,  1806,  post,  vol. 


WILLIAMSON  i;.  WILSON.  421 

extended  no  further  than  to  exclude  trespassers,  to  make  such 
repairs  as  are  indispensably  necessary,  and  to  collect  and  account 
for  the  rents  and  profits.  But,  where  the  preservation  of  personal 
property  has  been  the  object,  the  receiver  has  been,  in  many  respects, 
invested  with  the  authority  of  a  curator  bonis  of  the  Roman  law. 
He  has  been  directed  to  take  into  his  possession  all  the  moveables  ; 
and  if  any  were  of  a  perishable  nature,  to  sell  them.  He  has  been 
directed  to  collect  and  sometimes  to  pay  debts.  Where  there  has 
been  a  breach  of  duty  by  a  partner,  a  receiver  has  been  appointed 
and  charged  with  the  winding  up  of  an  unsettled  commercial  con- 
cern.(6)  And  in  all  cases  he  has  been  held  bound  to  render  a 
strict  account  of  liis  stewardship.  A  receiver  is  an  officer  of  the 
court.  He  is  considered  as  truly  and  properly  the  hand  of  the 
court ;  but  his  appointment  determines  no  right ;  nor  does  it  affect 
the  title  to  the  property  in  any  way ;  it  will  not  even  prevent  the 
running  of  the  statute  of  limitations.  The  holding  of  the  receiver, 
is  the  holding  of  the  court  for  him  from  whom  the  possession  was 
taken ;  therefore,  should  any  loss  happen  it  must  be  borne  by  him 
from  whom  the  property  was  taken,  not  by  the  party  at  whose 
instance  the  receiver  was  appointed. (c) 

But  it  has  been  argued,  that  a  measure  so  prompt  and  vigorous, 
as  that  which  has  been  adopted  upon  the  present  occasion,  may  be 
applied  to  the  most  pernicious  purposes ;  that  it  is  open  to  the 
greatest  abuse ;  and  that  the  consequences  of  such  a  procedure 
among  commercial  people,  may  become  most  mischievous  and 
irreparably  ruinous  in  its  operation.  I  have  meditated  upon  what 
has  been  urged  in  this  respect. 

That  this  court  should  have  the  power  in  unusual  and  pressing 
emergencies,  at  the  instance  of  a  party  interested,  effectually  and 
without  delay  to  put  its  hand  upon  property,  so  far  as  to  prevent 
waste,  inextricable  confusion,  or  total  destruction,  seems  lo  be 
admitted  by  all  to  be  clearly  right,  or  at  least  highly  beneficial. 
The  apprehension  of  abuse  from  such  a  power,  when  exercised  by 
means  of  a  receiver,  seems  to  have  arisen  from  a  contemplation  of 
the  circumstances  of  this  case.  These  parties  were  merchants, 
who  had  been  extensively  engaged  in  trade  in  the  great  emporium 
of  our  State.  And,  any  merchant,  it  has  been  said,  by  means  of 
this  power  of  the  court  of  chancery,  may  have  his  counting-house 


(6)  Peacock  v.  Peacock,  16  Yes.  49  ;  Harding  v.  Glover,  18  Ves.  281.— (c)  Pow. 
Mort.  294,  note ;  2  Mad.  Chan.  233. 


422  WILLIAMSON  V.  WILSON. 

closed,  his  trade  broken  up,  and  liis  commercial  reputation  utterly 
blasted  at  a  single  blow,  by  a  malignant  application  for  the  appoint- 
ment of  a  receiver,  founded  on  a  statement  of  facts  altogether 
fabricated  and  false. 

There  is  one  general  answer,  that  may  be  given  to  this  asser- 
tion ;  which  is,  that  the  plainest,  most  temperate,  and  best  guarded 
forms  of  judicial  proceedings,  known  to  the  common  law,  have 
been  abused  and  made  the  instruments  of  malice.  Of  which  the 
multitude  and  variety  of  the  reported  examples,  in  actions  for 
malicious  prosecutions  and  arrests,  afford  too  strong  proof:  and, 
even  in  this  very  case,  the  defendants,  by  their  answer,  desire  it  to 
be  recollected,  that  the  well  guarded  common  law  process  of  reple- 
vin has  been  wantonly  and  grossly  perverted  and  abused  to  their 
great  wrong  and  injury.  But  upon  the  present  occasion,  since 
these  applications  have,  of  late,  become  more  fi'equent,  it  may  be 
well  to  consider  this  matter  more  particularly. 

A  receiver  is  never  appointed  before  answer,  but  upon  very 
strong  special  ground  supported  by  affidavit  ;(^)  or,  as  is  the 
practice  in  this  State,  on  a  bill  sworn  to  by  the  complainant ; 
or,  in  case  of  his  not  being  in  this  State,  by  some  one  conusant 
of  the  facts  stated.  A  motion  to  rescind  an  appointment  is 
always  heard  on  a  short  notice ;  and  a  receiver  is  in  no  case 
permitted  to  take  charge  of  the  property  without  having  first  given 
bond  with  approved  surety.  So  far  then  this  chancery  power  is  at 
least  as  little  susceptible  of  abuse  as  the  process  of  replevin,  as  is 
shewn  by  the  example  furnished  by  the  defendants'  answer.  But, 
this  is  not  all ;  there  are  other  safeguards  against  the  abuse  of  this 
power.  The  court  always  reluctantly  interferes  against  the  legal 
title,  only  in  a  case  of  fraud  clearly  proved,  and  of  imminent 
danger ;  and  a  receiver  will  not  be  appointed  when  the  matter  in 
dispute  depends  on  the  legal  title  ;  unless  strong  grounds  are  shewn, 
and  the  rents  and  profits  are  in  imminent  danger. (e) 

Where  a  plaintiff  is  permitted  to  come  into  a  court  of  chancery 
in  behalf  of  himself  and  other  creditors,  or  may  sue  here  because 
of  the  equitable  nature  of  his  claim,  and  in  respect  of  a  fund  in  the 
hands  of  the  defendant,  out  of  which  he  has  a  right  to  ask  pay- 
ment, he  may,  under  certain  circumstances,  have  a  receiver  put 
upon  the  property  or  assets  liable  to  his  claim.  But  under  no  other 


(rf)  Duckworth  v.  Trafford,  18  Ves.  2S3.— (e)    Lloyd  v.  Passins^ham,  16  Ves.  59  ; 
Norway  v.  Rowe,  19  Ves.  148,  note ;  Maguire  v.  Allen,  1  Ball  St  Bea.  75. 


WILLIAMSON  V.  WILSON.  423 

circumstances  does  it  appear,  that  the  estate  of  a  debtor  may  be 
put  into  the  hands  of  a  receiver  at  the  instance  of  a  creditor.  In 
most  cases  the  application  is  founded  upon  the  fact,  that  waste,  or 
peril  has  assailed  or  does  then  immediately  threaten  the  property 
in  question.  But  there  are  cases  in  which  it  may  become  neces- 
sary to  interpose  for  the  purpose  of  keeping  the  profits  of  an  estate 
in  litigation  apart  from  those  arising  from  another  which  is  not  the 
subject  of  controversy;  on  the  ground,  that  they  are  likely  to 
become  so  inextricably  mingled  as  to  render  it  extremely  difficult 
or  impossible  to  make  a  correct  estimate  of  those  of  the  litigated 
estate  after  the  right  to  it  shall  have  been  regularly  determined.  In 
such  cases  the  court  will  appoint  a  receiver  of  the  rents  and  profits 
of  the  litigated  property.  As  where  certain  wharves  were  claimed 
by  the  plaintiff  in  opposition  to  the  city  of  Baltimore,  a  receiver 
was  directed  to  collect  the  wharfage  of  those  wharves,  the  right  to 
which  had  been  made  the  subject  of  litigation,  and  keep  it  sepa- 
rate from  that  collected  for  the  use  of  other  wharves  under  the 
authority  of  the  city.(y) 

This,  however,  is  not  the  case  of  a  third  person  attempting  to 
stop  the  course  of  a  firm,  or  of  any  one  then  actually  engaged  in 
trade ;  but  is  the  case  of  a  partnership  where  one  of  the  partners 
has  averred,  that  their  trading  has  ceased,  and  that  the  firm  is 
utterly  insolvent,  and  thereupon  asks  for  the  appointment  of  a 
receiver  as  the  only  means  of  saving  him  and  their  creditors  from 
the  fraudulent  practices  of  his  co-partners.  Now,  in  cases  of  part- 
nership it  must  strike  every  one,  that  to  whatever  extent  of  malig- 
nancy, or  fraud  a  partner  might  be  urged  or  tempted  to  go  in  a 
condition  of  actual  insolvency  ;  yet,  under  other  circumstances,  his 
own  interest  would  v>'ithhold  him  from  attempting  to  have  this 
power  of  the  Court  of  Chancery  applied  to  an  unjust  and  perni- 
cious purpose ;  for,  it  is  rare  that  a  man  coolly  indulges  his  malice 
to  the  l-uin  of  his  own  interests.  And,  therefore,  it  cannot  oflen 
happen,  that  a  partner  will  deliberately  abandon  a  gainful  and 
prosperous  traffic  in  which  he  is  in  the  undisturbed  participation, 
and  maliciously  endeavour  to  break  it  up,  by  fabricating  such  a 
statement  as  will  induce  the  Chancellor  to  order  the  joint  funds  into 
the  hands  of  a  receiver,  (o-) 

But,  suppose  a  partner,  in  a  prosperous  and  lucrative  concern, 
to  be  actuated  by  such  malignant  feelings ;  how  far  could  he  carry 

(/)  The  Wharf  Case,  post,  vol.  ii. — '§)  Gow.  Pai-tner.  244. 


424  WILLIAMSON  V.  WILSON. 

the  abuse  of  this  power ;  and  to  what  extent,  by  its  means,  could 
he  injure  his  antagonist?  The  appointment  of  a  receiver  does 
not,  of  itself,  divest  any  one  of  possession ;  it  merely  authorizes 
the  receiver  to  demand,  and  to  accept  the  possession  when  volun- 
tarily delivered,  or  to  take  it  when  held  by  no  one  else.  For,  if 
the  holder  of  the  property  refuses  to  deliver  it,  the  receiver  or  party 
interested  must  apply  to  the  court  for  an  order  to  deliver  posses- 
sion, or  to  shew  cause  to  the  contrary.  In  all  cases,  where  the 
order  making  the  appointment  has  been  made  ex  parte,  and  before 
answer,  the  defendant  is  allowed  to  come  in  at  an  early  day  and 
move  to  have  the  order  rescinded.  And,  as  regards  third  persons, 
who  may  have  an  interest  in  property  thus  ordered  to  be  taken 
possession  of  by  a  receiver,  they  too  are  allowed,  in  a  summary 
way  on  notice  of  motion,  to  come  in  and  be  examined  pro  inieresse 
suo.{h) 

Upon  the  whole,  from  whatever  point  of  view  this  chancery 
power  may  be  contemplated ;  or  in  relation  to  whatever  of  the 
various  emergencies,  to  which  it  has  been  applied,  it  may  be  con- 
sidered, it  will  be  found  in  aU  respects  as  safe,  and  as  little  liable 
to  abuse  as  any  judicial  procedure  known  to  the  common  law.  It 
will  be  found  in  practice,  that  little  or  no  useless  pressure  can  be 
produced  in  any  case ;  and  that,  in  no  instance,  can  the  mischief 
continue  long  before  the  party  aggrieved  may  have  an  opportunity 
of  being  fully  heard,  and  of  obtaining  complete  relief. 

This  bill  has  been  filed  by  one  partner  against  his  copartners, 
charging  them  with  a  design  to  consume  and  waste  the  joint  pro- 
perty, or  to  apply  it  to  their  own  use  :  and  it  avers,  that  the  firm  is 
absolutely  insolvent.  The  answer  denies  these  charges  of  the  bill, 
but  admits  the  insolvency  of  the  firm ;  and  then  charges  the  plain- 
tiff with  a  design  so  to  apply  the  joint  funds  as  to  give  an  undue 
and  improper  preference  to  one  or  more  of  their  creditors.  These 
parties  have,  in  many  respects,  given  an  opposite  and  very  differ- 
ent account  of  the  state  of  affairs  between  them.  They  both, 
however,  admit  the  present  insolvency  of  the  firm  ;  and  agree, 
that  according  to  the  stipulations  of  their  contract  of  copartnership, 
the  term  of  its  duration  has  not  yet  expired. 

It  seems  to  be  admitted,  where  a  specified  period  of  time  is 
limited  for  the  continuance  of  a  partnership,  that  neither  party  can, 
at  his  option  alone,  dissolve  the  connexion.     But,  although  such 

(A)  2  Mad.  Chan.  245.      ^ 


WILLIAMSON  V.  WILSON.  425 

a  partnership  cannot  be  terminated  at  the  pleasure  of  either  party ; 
yet,  where,  as  in  this  instance,  there  is  no  express  stipulation  to 
the  contrary,  the  partnership  is  virtually  dissolved  by  the  death  of 
either  of  the  parties.  And  it  is  said,  that  in  England  the  bank- 
ruptcy of  one  partner  operates,  like  death,  as  a  virtual  dissolution 
of  the  firm.  In  point  of  principle,  and  so  far  as  relates  to  the 
matter  now  under  consideration,  there  can  be  no  difference  between 
a  bankruptcy,  according  to  the  English  law,  and  an  actual  insol- 
vency in  fact,  according  to  our  law.  So  long  as  a  man  carries  on 
his  business  and  has  a  prospect  of  gain,  he  is  not  considered  as 
insolvent ;  but  if,  in  addition  to  such  deficiency  of  property,  his 
business  so  far  declines  as  to  leave  him  no  prospect  of  paying  his 
debts,  he  is  then,  according  to  the  universal  sense  of  mankind, 
insolvent.  Whether  he  is  declared  to  be  in  this  condition  accord- 
ing to  the  technical  process  of  the  English  bankrupt  law,  or  is 
admitted  to  be  so  in  fact,  the  effect  upon  the  contract  of  copart- 
nership must  be  the  same.  The  insolvency  is  the  total  destruction 
of  the  pecuniary  capacity  of  the  partner  to  fulfil  his  contract  of 
copartnership.  But  his  pecuniary  capacity  was  the  basis  on  which 
it  rested.  The  contract  itself,  therefore,  must  be  considered  as 
effectually  annulled,  as  if  the  party  were  dead.  If  both  of  them 
be  insolvent,  or  dead,  there  is  no  efficient  or  living  capacity  left  to 
execute  the  contract ;  if  one  only  be  dead  or  insolvent,  the  terms 
of  it  cannot  be  complied  with  ;  and  where  personal  confidence  was 
the  principal  inducement  for  making  the  agreement,  as  in  contracts 
of  this  nature,  it  would  be  unreasonable;  and,  therefore,  the  other 
party  shall  not  have  the  executor,  administrator,  trustee  or  assignee 
of  the  deceased,  or  of  the  insolvent,  intruded  ui)on  him.  Conse- 
quently, the  partnership  between  these  parties  must  be  considered 
as  having  been  virtually  and  effectually  terminated  by  their  insol- 
vency. It  can  be  extended  over  no  new  transactions,  nor  be 
allowed  to  expand  itself  any  more.  It  must  be  v.'ound  up  and 
brought  to  a  close  ;  and,  except  for  such  purposes,-^^ust  be  deemed 
to  have  totally  ceased  to  exist. («') 

While  a  man  continues  solvent,  tlic  order  in  which  he  pays  his 
creditors  is  a  matter  of  indifference,  since  none  can  suffer ;  and 
therefore,  no  one  creditor  has  a  right  to  complain  of  the  preference 
given  to  another.     But  so  soon  as  he  becomes  insolvent,  that  pri- 

(i)  Ex  parte  Williams,  11  Ves.  5;  Holding  v.  Glover,  13  Ves.  231 ;  Vulliamy  ». 
Noble,  o  Meriv.  614;  Crawsbay  i".  Maule,  1  Swan.  506. 

54 


426  WILLIAMSON  V.  WILSON. 

vilege  ceases ;  and  equity  requires,  that  he  should  make  an  equal 
distribution  of  his  effects  among  them  all.  The  giving  of  an  undue 
and  improper  preference,  under  such  circumstances,  is  denounced 
by  the  express  provisions  of  our  insolvent  laws,  as  a  fraud.  And 
in  all  cases,  where  a  court  of  chancery  can  be  called  on,  and 
does  interpose  for  the  purpose  of  administering  the  assets  of  an 
insolvent  debtor,  it  is  governed  by  the  rule  of  equality ;  because 
equality  is  equity.  The  assets,  if  insufficient  to  pay  all,  are 
always  distributed  proportionably.  But,  although  this  is  the  duty 
of  an  insolvent  debtor ;  and  is  what  a  court  of  chancery  will  do  for 
him  in  all  cases,  where  his  effects  can  be  subjected  to  its  control ; 
yet  if  a  creditor  can  fairly  and  legally  obtain  full  payment  from  his 
insolvent  debtor,  equity  will  not  deprive  him  of  his  legal  advantage 
and  compel  him  to  refund. 

These  parties  admit  themselves  to  be  insolvent  debtors.  The 
plaintiff  charges  his  copartners,  the  defendants,  with  a  design  to 
w^aste  the  joint  property,  and  to  apply  it  to  their  own  use.  The 
defendants  deny  these  allegations,  and  charge  the  plaintiff  with  a 
design  to  misapply  the  funds,  and  "to  give  to  some  of  the  creditors 
an  undue  preference.  Taking  the  charges  of  the  plaintiff  and  of 
the  defendants,  or  of  either  party  to  be  true  ;  or  allow,  that  each  or 
either  party  was  about  to  waste  the  property,  or  has  his  favourite 
creditors  to  whom  it  is  his  design  to  gi^■e  an  undue  preference ; 
and  it  is  clear,  that  one  or  the  other  or  both  of  them  have  formed  a 
fixed  resolution  to  violate  one  of  the  great  principles  of  equity, 
which  it  is  the  peculiar  province  of  this  court  to  prevent.  None 
of  the  creditors  of  these  insolvent  debtors,  so  far  as  it  appears, 
have,  as  yet,  obtained  any  legal  advantage.  It  is  proper  therefore, 
that  this  court  should  now  lay  its  hands  upon  the  joint  propei-ty  of 
this  partnership,  and  let  all  its  creditors  come  in  pari  j>assu,  and 
according  as  their  respective  priorities,  if  any,  should  appear.  Both 
parties  profess  to  have  had  this  equitable  distribution  in  contem- 
plation ;  both  acknowledge  themselves  to  be  in  that  insolvent  con- 
dition, in  which  the  making  of  such  an  equitable  distribution  has 
devolved  upon  them  as  a  duty.  And  yet  each  charges  the  other 
with  having  made  an  effort,  and  formed  a  fixed  design  to  disregard 
this  duty.  Neither  of  them  seems  to  have  the  least  confidence  in 
the  other.  Under  all  these  circumstances,  I  consider  this  as  a 
case,  in  which  it  is  peculiarly  fit  and  proper,  that  a  receiver  should 
have  been  appointed  before  answer,  and  should  now  be  continued, 


WILLIAMSON  V.  WILSON.  427 

as  a  means  of  winding  up  the  affairs  of  this  partnership  in  safety, 
and  with  justice  and  equality  to  all  concerned. (j) 

It  follows  as  a  necessary'  consequence  of  appointing  a  receiver 
before  answer,  that  the  selection  of  the  person  to  be  appointed 
must  be  made  by  the  Chancellor  on  the  ex  parte  recommendation 
of  the  party  applying  for  the  appointment.  In  England,  the  selec- 
tion of  a  suitable  person  is,  most  commonly,  referred  to  a  master, 
by  whom  both  parties  may  be  heard  ;  but  here,  that  duty  must  be 
performed  by  the  Chancellor  himself.  And,  in  this  case,  the 
selection  of  a  suitable  person,  as  well  as  every  other  jnatter  in 
relation  to  the  application  for  the  appointment  of  a  receiver,  is  now 
as  entirely  open  for  consideration  as  if  nothing  had  been  previously 
done.  The  appointment  that  has  been  made  may  be  rescinded  ; 
the  continuance  of  a  receiver  may  be  altogether  refused  ;  or  the 
appointment  may  be  now  made  more  suitable  to  the  circumstances 
of  the  case. 

The  recommendations  of  those  most  interested,  and  who  are 
most  likely  to  sustain  injury  without  an  appointment  of  a  receiver, 
have  generally  been  most  regarded.  The  being  a  near  relation  of 
either  party  is  not  in  itself  an  absolute  disqualification,  but  it  must 
be  allowed  to  have  its  weight  when  connected  with  other  circum- 
stances. 

In  this  case  I  am  of  opinion,  that  the  present  receiver,  David  Wil- 
liamson jun'r,  ought  to  be  removed.  Jealousies  have  been  excited 
against  him.  He  is  the  brother  of  one  of  the  parties,  and  the  son 
of  one  who  claims  to  be  a  large  creditor  of  the  firm.  He  is 
admitted  by  the  plaintiff  to  have  taken  an  active  part  in  this  con- 
troversy as  his  agent  and  friend.  And  he  is  charged  by  the  defend- 
ants with  having  been  active  by  undue  means  to  their  great  preju- 
dice. His  feelings  and  affections  appear  to  have  become  too  much 
enlisted  to  permit  him  to  be  as  unbiassed  and  impartial  as  a  receiver 
ought  to  be  in  winding  up  the  partnership  affairs  of  these  insolvent 
debtors. 

Jacoh  Schley  has  been  recommended  by  some  of  the  creditors, 
or  those  who  allege,  that  they  are  creditors  of  the  firm ;  and  the 
counsel  of  these  litigating  parties  admit  him  to  be  in  all  resp.ects 
capable  and  fit ;  I  shall  therefore  appoint  him.  This  receiver  will, 
as  usual,  be  at  present  invested  with  no  other  authority  than  to 
receive  and  take  care  of  the  effects  of  these  insolvents ;  but  any 

{j)  Peacock  v.  Peacock,  16  Ves.  49. 


428  WILLIAMSON  i'.  WILSON. 

further  authority  and  directions  that  may  be  necessary,  will  be 
given  when  applied  for,  and  as  circumstances  may  suggest  and 
require.  The  compensation  of  the  receiver  removed,  and  of 
the  one  now  appointed,  will  be  determined  on  a  representation  of 
their  trouble,  skill,  and  merits,  as  to  which  the  parties  will  be 
heard. 

From  what  has  been  said  the  reasons  for  continuing  the  injunc- 
tion must  be  sufficiently  evident.  It  is,  in  this  case,  a  suitable 
auxiliary  to  the  appointment  of  a  receiver ;  and  therefore  will  be 
allowed  to  operate  until  the  hearing  or  further  order,  (/c) 

With  regard  to  the  exceptions-,  that  have  been  taken  to  the 
defendants'  answer,  it  may  be  sufficient  to  remark,  that  from  the 
manner  in  which  they  were  treated  in  the  argument,  it  did  not 
appear,  that  the  plaintiff  wished  them  to  be  now  decided  upon ; 
and,  as  it  was  not  necessary  to  do  so,  they  have  been  passed  over 
for  the  present. 

Whereupon  it  is  ordered,  that  Jacob  Schley,  of  the  city  of  Bal- 
timore, be  and  he  is  hereby  appointed  a  receiver,  with  power  and 
authority  to  receive  and  take  charge  and  possession  of  the  goods, 
wares  and  merchandise,  books,  papers,  and  effects  of  and  belong- 
ing jointly  to  the  said  Charles  A.  Willianison,  John  B.  Wilson,  and 
Johi  J\^.  IVooclai'd,  lately  trading  under  the  name  and  firm  of  Wil- 
son, Williamson  &  Co.  And  also  with  power  and  authority  to  sue 
for  and  to  collect  the  debts  due  unto  the  said  firm.  And  the  said 
Charles  A.  Williamson,  John  B.  JVilson,  and  Johji  JY.  Woodard,  and 
each  of  them,  are  hereby  required,  to  yield  up  and  deliver  unto  the 
said  Jacob  Schley  the  goods,  wares,  and  merchandise,  books, 
papers,  and  effects  of  or  belonging  to  the  said  firm.  And  it  is 
further  ordered,  that  before  the  said  Jacob  Schley  proceeds  to  act 
as  a  receiver  by  virtue  of  this  order,  he  shall  give  bond  to  the  State 
of  Maryland  in  the  penalty  of  thirty  thousand  dollars,  with  surety 
to  be  approved  by  the  Chancellor,  for  the  faithful  performance  of 
the  trust  reposed  in  him  by  this  order,  or  which  may  be  reposed  in 
him  by  any  future  order  in  the  premises.  And  it  is  farther  ordered, 
that  the  said  David  Williamson  jun'r,  be  and  he  is  hereby  removed 
from  the  office  of  receiver,  to  which  he  was  appointed  by  the  order 
of  this  court  of  the  third  instant ;  that  he  make  report  and  render 
unto  this  court  a  full  and  fair  account  of  all  the  property  or  money-, 
which  may  have  come  to  his  hands,  and  of  all  his  proceedings 

(fc)  Eden.  Inj.  220. 


WILLIAMSON  V.  WILSON.  429 

while  he  acted  as  such.  And  he  is  hereby  directed  and  required 
to  yield  up  and  deliver  over  unto  the  said  Schley,  so  soon  as  he 
shall  have  been  qualified  to  act  as  receiver  as  before  mentioned,  all 
the  goods,  wares  and  merchandise,  books,  papers,  and  effects  of 
the  said  firm  which  may  have  been  received  by  him  the  said  Wil- 
liamson,  or  which  he  may  now  hold  or  have  under  his  control. 
And  it  is  further  ordered,  that  the  injunction  heretofore  granted  in 
this  case  be  and  the  same  is  hereby  continued  in  full  force  until  the 
hearing  or  further  order. 


Afler  which  Jacob  Schley,  having  filed  his  bond  with  approved 
surety  as  required,  proceeded  to  act  as  authorized  ;  and  on  the  8th 
May  1826  made  a  report,  on  oath,  in  which  he  stated,  that  he  had 
obtained  possession  of  the  books  and  papers  of  the  firm,  and  a 
large  amount  of  their  goods  and  effects,  which,  as  he  represented, 
it  would  be  most  for  the  benefit  of  all  concerned  to  have  sold  at 
auction  on  a  credit. 

Qth  May,  1826.— Bland,  Chancellor. — Upon  consideration  of 
the  report  of  the  receiver,  it  is  ordered,  that  Jacob  Schley,  the  said 
receiver,  be  and  he  is  hereby  authorized  and  required  to  sell  the 
goods,  wares  and  merchandise  in  the  said  report  mentioned  on  a 
credit  of  four  months  for  approved  endorsed  notes,  according  to  the 
usual  course  and  manner  of  selling  goods  at  auction  in  the  city  of 
Baltimore.  And  he  is  hereby  further  authorized  and  directed  to 
sell  any  other  goods,  w^ares  and  merchandise,  being  the  joint  pro- 
perty of  the  said  parties,  which  may  come  to  his  hands,  in  such 
manner  as  he  may  deem  most  beneficial  and  best  for  the  interest  of 
all  concerned. 


It  was  also  ordered  on  the  same  day,  that  the  exceptions  to  the 
defendants'  answer  should  stand  for  hearing  on  the  first  day  of  June 
then  next.  And  on  the  17th  of  July  following,  on  the  admission 
of  the  defendants'  solicitor,  it  was  ordered  that  the  exceptions  be 
sustained,  and  that  the  defendants  make  a  more  full  and  perfect 
answer  on  or  before  the  first  day  of  the  next  term.  On  the 
same  17th  July,  the  plaintiff  by  his  petition  stated,  that  a  large  sum 
had  been  collected  by  the  receiver,  which  he  prayed  might  be 
distributed  among  the  creditors  of  the  firm ;  sundry  creditors 
of  the  firm  also  filed  their  petitions  in  this  oase,  alleging  that 
the  receiver  had  in  his  hands  a  large  amount,  which  they  prayed 
might  be  applied   in   satisfaction  of  their  claims.     And  at  the 


430  WILLIAMSON  V.  WILSON. 

same  time  the  receiver  reported,  that  he  had  a  considerable  sum 
in  his  hands,  as  to  the  disposition  of  which  he  prayed  the- order  and 
direction  of  the  court, 

21st  July,  1826. — Bland,  Chancellor. — Upon  these  petitions  of 
those  who  present  themselves  in  this  suit  as  creditors  of  the  firm 
of  Wilson,  Willinmson  &  Co.,  it  becomes  necessary  to  consider  this 
case  in  a  new  point  of  view ;  and  to  determine  its  general  charac- 
ter, as  well  in  relation  to  the  original  litigants,  as  to  those  who 
now  propose  to  be  admitted  as  parties,  and  have  a  control  over  its 
future  course. 

The  bill  states,  that  a  partnership  had  been  formed  and  conducted 
for  some  time  between  the  plaintiff  and  the  defendants,  and  that  the 
firm  had,  just  previous  to  the  institution  of  this  suit,  become  insol- 
vent ;  these  facts  have  been  admitted  by  the  answer.  These  ori- 
ginal parties  are  then,  at  least  to  the  extent  of  their  joint  concern 
as  merchants,  to  be  considered  as  insolvent  debtors ;  as  such  they 
must,  in  equity,  be  regarded  as  mere  trustees  for  the  benefit  of 
their  creditors ;  'and  therefore  neither  of  them  can  be  allowed  to 
derive  any  pecuniary  advantage  to  himself  from  this  suit.  The 
proper  and  sole  object  of  this  bill  is  to  have  the  funds  of  Wilson, 
Williamson  &  Co.  collected  and  distributed,  so  far  as  they  will  go, 
among  the  creditors  of  the  firm  in  satisfaction  of  their  claims, 
according  to  the  princi^iles  of  equity.  This  matter  has  been  brought 
here  by  insolvent  debtors  for  the  purpose  of  obtaining  a  partial  dis- 
charge from'  the  claims  to  which  they  are  liable,  and  in  that  way  to 
procure  some  relief  to  themselves.  But  the  whole  pecuniary  benefit 
of  the  suit,  must,  according  to  their  own  admissions,  be  awarded 
to  their  creditors.  The  mere  form  and  phraseology  of  the  bill  can- 
not materially  affect  the  nature  of  the  case  which  it  brings 
before  the  court ;  and  hence,  although  this  is  not  a  suit  instituted 
by  a  creditor  either  for  himself  alone,  or  for  himself  and  others, 
against  his  insolvent  debtor ;  or  against  the  representatives 
of  his  deceased  debtor  to  have  his  re^l  and  personal  assets  admin- 
istered for  the  benefit  of  his  creditors  ;  yet  it  is  a  suit  which,  by 
the  express  admission  of  the  insolvent  parties,  has  placed  under 
the  control  of  the  court  a  considerable  fund  for  the  benefit  of  those 
who  are  the  creditors  of  the  plaintiff  and  the  defendants  jointly. 
It  must  therefore  be  considered  in  all  respects  as  a  creditors'  suit ; 
and  these  petitioning  creditors  must  be  allowed  to  come  in  as  par- 
ties ;  and  all  the- other  creditors  of  this  firm  must  be  called  on  by 
a  public  notice,  in  the  usual  form,  to  bring  in  the  vouchers  of  their 


WILLIAMSON  V.  WILSON.  431 

claims  by  a  limited  time,  before  any  distribution  can  be  made  of 
the  funds  now  in  the  hands  of  tlic  court.  With  regard  to  the 
authentication  of  claims,  and  the  conflicting  rights  of  claimants, 
the  court  will  be  governed  by  its  established  rules  in  similar  cases, 
as  any  such  questions  may  arise. (/) 

(Z)  Barnaby  v.  Hollingsworth. — The  bill  filed  2d  July,  17S7,  states  that  John 
Barnaby,  (who  was  not  a  defendant,)  being  indebted  to  the  plaintiff' Richard  Barnaby, 
and  sundry  other  persons,  conveyed  all  his  property  to  the  defendants  H.  Hollings- 
worth,  A.  Todd,  J.  Field,  and  J.  Warder,  in  trust  for  the  benefit  of  his  creditors; 
that  the  defendants  took  upon  themselves  the  trust ;  obtained  possession  of  the  pro- 
perty conveyed,  and  have  refused  to  distribute  the  money  received,  or  to  sell  a  part 
of  the  real  estate,  or  to  account.  Prayer  to  account,  for  payment,  and  general 
relief,  &c.  The  defendants  answered,  &.c.  It  appears  that,  by  an  agreement  of 
October,  1739,  signed  by  the  solicitors  of  tlie  parties,  the  case  had  been  referred  to 
arbitrators  ;  who,  without  the  sanction  of  an  order  by  the  Chancellor,  awarded,  that 
the  plaintiff  was  not  the  partner  of  John  Bai-naby,  and  that  he  was  indebted  to  the 
plaintiff  in  the  sum  of  £3200  14s.  Z\d. 

2Slh  November,  1789. — Hanson,  Chancellor. — This  case  standing  ready  for  decree, 
and  the  bill,  answers,  exhibits,  and  award  aforesaid  being  read,  and  appearing  as 
herein  before  set  forth ;  it  is  thereupon  Decreed,  that  the  defendants  Heniy  Hollings- 
worth,  Alexander  Todd,  John  Field,  and  Jeremiah  AVarder,  ti-ustees  in  the  deed 
aforesaid  mentioned  in  the  complainant's  said  bill,  bearing  date  the  eighteenth  day  of 
January,^n  the  year  of  our  Lord  one  thousand  seven  hundred  and  eighty-seven,  do 
account  with  the  complainant,  and  render  upon  oath  in  tliis  court,  a  full  and  particular 
statement  of  all  the  real  and  personal  estate,  debts  due  and  owing  to  the  said  John 
Barnaby,  and  other  property  assigned  and  conveyed  to  the  said  defendants  by  the 
said  deed  of  trust,  and  what  part  thereof  hath  been  received  by  them  or  cither  of 
them,  or  hath  come  to  their  or  either  of  their  possession,  and  how  the  same  and  every 
part  thereof,  hath  been  applied  and  disposed  of,  subject  to  such  future  order  and 
decree  as  this  court  shall  make  in  the  premises. 


After  which  the  defendants  made  out  and  filed  an  account,  he. ;  upon  which  the 
following  decree  was  passed : — 

May,  1792. — Hanson,  Chancellor. — An  interlocutoiy  decree  having  been  passed  in 
this  cause,  for  the  defendants  to  account  with  the  complainant,  and  to  render  on  oatli 
a  full  and  pai-ticular  statement  of  all  the  real  and  personal  estate,  debts,  and  other 
property  of  John  Barnaby  to  them  by  the  said  Barnaby  assigned,  for  the  benefit  of 
his  creditors;  and  the  said  Henry  Hollingsworth  having  in  consequence  thereof 
returned  an  account  and  statement  on  oath,  by  which  it  appears,  that  he  hath  in  his 
hands,  of  the  property  so  assigned  by  the  said  John  Barnaby,  the  sum  of  six  hundred 
and  eighty-eight  pounds,  ten  shillings  and  seven  pence,  current  money,  and  also 
other  property,  not  disposed  of,  and  converted  into  money ;  and  tlie  complainant  by 
a  petition,  this  day  filed,  having  prayed  an  order  of  this  court  to  compel  the  said 
Hollingsworth  to  bring  into  court  to  be  divided  amongst  the  creditors  of  the  said 
John  Barnaby,  the  money  in  the  hands  of  him  the  said  Hollingsworth  as  aforesaid, 
and  also  the  money  by  him  received  as  trustee  since  rendering  the  said  account : 

It  is  thereupon  Ordered,  that  the  said  Henry  Hollingsworth  do  immediately  bring 
into  this  court  the  said  sum  of  six  hundred  and  eighty-eight  pounds  ten  shillings  and 
seven  pence,  cui'rent  money ;  and  that  he  also  render  an  account  of,  and  bring 
into  this  court,  all  the  money  by  liim  received  as  trustee  aforesaid,  to  be  distiibuted 


432  WILLIAMSON  V.  WILSON. 

Whereupon  it  is  ordered,  that  the  plaintiff  give  notice  to  the 
creditors  of  the  firm  of  Wilson.,  Williamson  &  Co.,  to  file  their 
claims  in  the  chancery  office,  properly  authenticated,  on  or  before 
the  fifteenth  day  of  NoA^ember  next,  by  causing  a  copy  of  this 
order  to  be  published  in  the  American  once  a  week  for  three  suc- 
cessive weeks  on  or  before  the  21st  day  of  August  next. 


After  the  publication  of  this  order  as  directed,  the  plaintiff  by 
petition  stated,  that  many  of  the  creditors  of  the  firm  had  not 
brought  in  their  claims;  upon  which  it  was  ordered,  on  the  17th 
of  November  1826,  that  the  time  for  the  production  of  claims  be 
extended  to  the  first  day  of  December,  and  that  public  notice 
thereof  be  given  by  a  publication  of  the  order  in  the  American 
newspaper.  Proof  of  the  publishing  of  these  orders  was  made  in 
the  usual  manner  by  filing  a  certificate  of  the  editor  of  the  news- 
paper in  which  they  had  been  inserted.  And  many  of  the  credi- 
tors of  the  firm  having  filed  the  vouchers  of  their  claims,  the 
plaintiff  on  the  9th  of  December  filed  exceptions  to  many  of  them 
for  want  of  the  requisite  proofs  and  testimonials  of  authenticity; 
and  against  some  because  of  their  not  being  in  their  nature  admis- 
sible as  claims  against  this  firm. 

11th  December y  1826.— Bland,  Chancellor. — Notice  having  been 
given  as  ordered,  to  the  creditors  to  exhibit  their  claims,  and  the 
case  being  now  in  a  situation  to  have  an  account  stated,  on  motion 
of  the  parties,  it  is  ordered,  that  this  case  be  and  it  is  hereby 
referred  to  the  auditor,  with  directions  to  state,  from  the  proceed- 
ings and  proofs,  an  account  or  accounts  shewing  the  amount  due 
from  the  firm  of  Wilson,  Williamson  &  Co.,  to  each  of  their  cre- 
ditors who  have  exhibited  their  claims  to  this  court :  and  also  the 


amongst  the  creditors  of  the  said  John  Barnahy,  according  to  their  claims  and  tlie 
intent  of  the  deed  of  trust  of  the  said  John  Barnahy  to  the  said  trustees. 

It  is  further  Ordered,  that  the  creditors  of  the  said  John  Bnrnaby  have  notice  to 
exhibit  their  claims  in  this  court,  on  or  before  the  first  day  of  September  next,  for 
the  purpose  of  obtaining  their  respective  dividends  or  just  proportions  of  money 
arising  from  the  property  by  him  assigned  for  the  benefit  of  his  creditors  ;  and  that 
the  said  notice  be  given  by  having  a  copy  of  the  order  inserted  in  the  newspaper  of 
Goddard  &,  Angel,  at  any  time  before  the  sixteenth  of  June  next,  and  continued 
therein  four  weeks  successively. 


After  this,  notice  having  been  given,  sundry  creditors  exhibited  their  claims,  and 
the  auditor  was  directed  to  state  an  account  apportioning  the  said  sum  among  them, 
which  was  done,  and  confirmed,  and  the  amount  allotted  to  each  directed  to  be  paid 
accordingly. 


WILLIAMSON  V.  WILSON.  433 

proportion  which  each  one  of  them  may  be  entitled  to  receive  out 
of  the  funds  in  the  hands  of  the  receiver  after  all  just  allow- 
ances have  been  made.  And  also  to  state  such  other  accounts  as 
the  nature  of  the  case,  or  the  parties  may  require. 

The  first  receiver,  David  Williamson  jun'r,  who  was  appointed 
on  the  third,  and  removed  on  the  twenty-fourth  day  of  April  last, 
is  hereby  allowed  one  per  cent,  on  the  amount  now  about  to  be 
distributed  among  the  creditors  of  the  said  firm.  The  present 
receiver  Jacob  Schley  is  hereby  allowed  eight  per  cent,  on  the  same 
amount,  as  a  compensation  for  his  trouble  in  receiving  the  same ; 
and  in  paying  over  to  each  creditor  his  portion  thereof,  according 
to  the  statement  of  the  auditor,  after  it  shall  have  been  confirmed 
by  the  Chancellor.  Each  of  these  receivers  are  also  to  be  allowed 
such  expenses  as  they  may  either  of  them  have  incurred,  as  such, 
in  the  defence  and  preservation  of  the  property  committed  to  their 
keeping,  and  in  the  execution  of  the  trust  reposed  in  them ;  of 
which  expenditures  they  shall  produce  before  the  auditor  vouchers 
authenticated  in  the  usual  manner. 


On  the  13th  Februar}-,  1827,  the  auditor  made  a  report,  with  a 
statement  of  the  distribution  of  the  funds  among  the  creditors  who 
had  then  filed  their  claims.  Assuming  as  directed  the  principles 
and  rules  of  the  court  applicable  to  claims  brought  in  under  a  cre- 
ditors' bill,  the  auditor  stated,  that  there  were  then  filed  thirty-two 
claims ;  that  many  of  them  were  not  proved  as  required  ;  that 
others  were  founded  on  endorsed  notes  or  joint  liabilities,  and  those 
w^ho  were  so  jointly  liable  with  the  firm  were  not  shewn  to  be  mere 
sureties  or  insolvent ;  and  that  others  were  objectionable  in  their 
nature  because  of  its  not  clearly  appearing  that  they  were  properly 
debts  due  from  the  firm.  This  report,  at  the  instance  of  the 
receiver,  was  revised  by  the  auditor  to  rectify  some  mistakes  as  to 
the  amount  stated  to  be  in  his  hands  ;  and  to  let  in  some  allow- 
ances to  him  for  his  expenses  ;  and  another  statement  was  reported 
by  the  auditor  on  the  22d  February  1827. 

The  plaintiff  by  his  petition  alleged,  that  the  evidence  to  sup- 
port his  exceptions  to  the  claims  of  Charles  Cappeau,  Garrett 
Brown,  diaries  and  J.  Walker,  and  Lot  Ridgely,  was  within  the 
knowledge  of  those  parties  respectively.  Wherefore  he  prayed, 
that  they  might  be  ordered  to  answer  those  exceptions  on  oath. 

30th  March,  1827. — Bland,  Chancellor. — Ordered,  that  C/mr/es 

Cappeau,  Garrett  Brown,  Charles  and  J.  Walker,  and  Lot  Ridgely 

55' 


434  WILLIAMSON  V.  WILSON. 

make  answer  on  oath  or  affirmation  to  the  exceptions  as  prayed  by 
this  petition,  on  or  before  the  sixteenth  day  of  May  next,  or  shew 
good  cause  to  the  contrary :  Provided  a  copy  of  this  order  and  the 
petition  and  the  exceptions  therein  referred  to  be  served  on  each 
of  them  on  or  before  the  tenth  day  of  April  next. 


On  the  21st  May  following  they  filed  their  answer  accordingly. 

Lot  Ridgely  and  others  creditors  of  the  firm  on  the  6th  of  April 
1827,  filed  exceptions  to  the  allowance  of  several  claims  as  stated 
by  the  auditor ;  and  at  the  same  time  by  their  petition  prayed  to 
have  leave  to  take  testimony  in  relation  to  their  exceptions. 

1th  April,  1827. — Bland,  Chancellor. — Upon  this  application 
it  must  be  recollected,  that  in  a  creditors'  suit,  as  this  is,  each  cre- 
ditor has  a  right  to  assume  the  position  of  a  plaintiff,  as  against 
his  debtor,  whatever  may  be  the  nominal  station  of  such  debtor  in 
the  suit  then  depending  before  the  court;  that  each  creditor,  hav- 
ing an  interest  in  excluding  the  claims  of  all  other  creditors,  so 
far  as  the  admission  of  their  claims  to  a  participation  of  the  funds 
would  lessen  the  amount  of  satisfaction  he  would  otherwise  obtain, 
has  a  right  to  plead  the  statute  of  limitations,  or  make  any  objec- 
tion to  the  allowance  of  any  claims  which  the  debtor  himself  could 
make  under  similar  circumstances ;  and  that  each  one  of  the 
debtors,  or  their  representatives,  may  make  any  defence  against  a 
claim  w^hich  he  would  be  permitted  to  make  if  he  alone  were 
charged  as  the  only  debtor.  Hence  it  follows,  that  in  taking  testi- 
mony in  relation  to  such  a  contested  claim,  in  order  that  it  may  be 
impartially  taken,  the  party  requiring  it  must  give  notice  to  the 
party  directly  to  be  affected  by  it,  or  to  some  one  w^ho  has  an  inter- 
est in  cross  examining  the  witnesses,  and  having  their  testimony 
fully  and  correctly  reported  to  the  court.  To  give  notice  to  all  the 
creditors  would  be  impracticable ;  and  to  indulge  the  parties  in 
such  cases  in  taking  testimony  without  limit  as  to  time  would  be 
contrary  to  reason  and  the  usual  course  of  the  court  in  similar 
cases. 

Whereupon  it  is  ordered,  that  any  creditor  of  the  firm  of  Wil- 
son, Williamso7i  &  Co.,  whose  claim  is  stated  or  noticed  by  the 
auditor  in  his  report,  and  also  the  said  copartners,  be  and  they  are 
hereby  severally  authorized  to  take  the  deposition  of  any  witnesses 
in  relation  to  such  claims,  before  the  commissioners  appointed  to 
take  testimony  in  Baltimore  ;  provided,  that  three  days'  notice  be 
given  as  usual,  by  the  creditor,  in  whose  behalf  the  testimony  is 


WILLIAMSON  V.  AVILSON.  435 

proposed  to  be  taken,  to  some  two  or  more  other  creditors,  or  one 
or  more  of  the  firm  or  their  solicitor ;  or  by  one  or  more  of  the 
firm,  in  whose  behalf  the  testimony  is  proposed  to  be  taken,  to 
some  two  or  more  of  the  creditors  or  their  solicitor.  But  the  cre- 
ditor against  whose  claim  the  testimony,  when  taken,  is  intended 
particularly  to  operate,  must  himself  or  his  solicitor  be  so  notified. 
And  depositions  so  taken,  subject  to  all  legal  exceptions,  may  be 
read  in  evidence  ;  provided  they  are  filed  in  the  chancery  office  on 
or  before  the  first  day  of  May  next. 


The  plaintiff  by  a  petition  filed  on  the  Gth  of  April  1827,  stated, 
that  Jacob  Schley  the  receiver  was  then  dead ;  and  that  adminis- 
tration had  been  granted  on  his  estate :  upon  which  he  prayed, 
that  another  receiver  might  be  appointed,  according  to  the  recom- 
mendations therewith  filed ;  to  whom  the  administrators  might  be 
ordered  to  pay  and  deliver  over  the  money,  property,  books,  and 
vouchers  of  the  firm  which  had  come  to  the  hands  of  their  intes- 
tate. And  on  the  12th  of  the  same  month  John  Scott,  who  had 
been  thus  recommended  by  almost  all  the  creditors,  filed  his  remarks 
and  propositions,  in  which  he  says,  that  he  was  willing  to  serve  as 
receiver  without  any  commission  upon  the  money  received  by  the 
late  Jacob  Schley. 

4.th  May,  1827. — Bland,  Chancellor. — A  receiver  appointed  by 
this  court  must  be  considered  as  its  agent  or  executive  officer.  He 
stands  in  a  situation,  as  regards  this  court,  in  many  respects  anal- 
ogous to  that  in  which  a  sheriff  is  placed  in  relation  to  a  court  of 
common  law. 

It  is  made  the  duty  of  a  sheriff  by  a  fieri  facias  to  seize  and 
take  into  his  possession  the  property  of  the  defendant ;  to  convert 
it  into  money,  and  to  bring  the  money  so  made  into  court  or  pay  it 
to  the  plaintiff.  In  this  respect  a  sheriff  acquires  a  possessoiy 
right  to  the  property  which  he  has  been  thus  authorized  to  seize 
and  take  into  his  possession  ;  he  may  maintain  an  action  grounded 
on  such  right ;  and  the  defendant  whose  property  has  been  so 
taken  is  discharged  in  toto  or  to  the  amount  of  the  value  seized  in 
execution.  And-  the  sheriff  alone  is  held  answerable  to  the  amount 
which  has  so  come  to  his  hands  to  the  plaintiff,  at  whose  suit  the 
levy  was  made.(m) 

The  express  terms  of  the  order  of  appointment  in  this,  as  in  all 

(771)  Wilbraham  v.  Snow,  2  Saund.  47,  note. 


436  WILLIAMSON  V.  WILSON 

like  cases,  placed  the  receiver  in  a  similar  situation.  He  is  regarded 
as  a  trustee  in  respect  to  the  possession,  care,  and  distribution  of 
the  property  committed  to  his  charge ;  and  as  such  it  is  his  duty  to 
prevent  the  property,  so  handed  over  to  his  keeping,  from  being 
blended  with  his  own,  and  to  keep  such  clear  and  separate  accounts 
of  his  transactions  as  receiver  as  will  enable  him  at  all  times  and 
immediately  when  called  on  to  shew  the  amount  of  money  and  pro- 
perty in  his  hands  ;  and  so  distinctly  to  designate  it,  as  that  it  may 
be  traced  and  followed  into  the  hands  of  any  one  who  may  have 
wrongfully  obtained  possession  of  it.{n)  A  receiver  is  always 
required  to  give  bond  to  account  and  submit  to  orders  ;  and  if  he 
fails  to  account,  or  is,  in  any  respect,  delinquent  as  an  officer  of  the 
court, (o)  he  may  be  proceeded  against  in  a  nummary  way  by 
attachment ;  or  his  bond  may  be  put  in  suit  by  scire  facias  in  this 
court,  or  an  action  at  law  so  as  to  charge  him  and  his  sureties. (js) 

But  here  the  receiver  died  before  he  had  fulfilled  his  trust,  and 
the  question  is,  how  far  any  of  his  rights,  duties,  and  liabilities  as 
such  have  devolved  upon  his  personal  representatives  ? 

Where  a  sheriff  has  in  his  custody  persons  in  execution  and 
dies,  the  new  sheriff  must  take  notice  at  his  peril  of  all  executions 
against  any  person  he  finds  in  gaol ;  and  that  from  necessity ; 
because  there  is  no  one  to  make  delivery  or  give  notice  to  the  new 
sheriff  of  the  persons  in  custody  when  the  former  sheriff  died. 
And  if  a  prisoner  should  in  the  mean  time,  go  out  of  the  walls  of 
the  prison,  it  will  not  be  deemed  an  escape  as  against  either  the 
late  sheriff  or  his  successor ;  because  the  prisoner  will  be  consid- 
ered as  in  the  custody  of  the  law,  and  may  be  retaken  any  where 
and  at  any  time  after. (5-)  A  sheriff,  having  no  property  in  pri- 
soners detained  by  him  in  execution,  leaves  on  his  death  no  right, 
duty  or  responsibility,  as  regards  them,  to  devolve  upon  his  per- 
sonal representative.  But,  in  personal  property  taken  in  execution 
by  him,  he  has  in  all  cases  a  qualified  interest,  so  far  as  to  hold 
possession,  to  sell  and  make  the  money,  wherewith  to  satisfy  the 
plaintiff.  And,  for  such  purpose,  he  may  hold  and  sell  it  even 
after  his  oflicial  term  has  expired  and  he  has  ceased  to  be  sheriff. (r) 
From  these  principles  it  would  seem  necessarily  to  follow,  where 


(71)  Freeman  v.  Fairlie,  3  Meriv.  41. — (o)  Anonymous,  Mosely,  42. — (/>)  2  Fow. 
Exch.Prac.323  ;  Ex  parte  Grimstone,  Amb.  707;  Davies  v.  Cracraft,  14  Ves.  143; 
Musgrave  v.  Mcdex,  1  Meriv.  49  ;  2  Harr.  Pra.  Chan.  120  ;  Grant  v.  Stone,  1  Vein. 
313.— ( J)  Westby's  Case,  3  Co.  72.— (r)  Wilbraham  v.  Snow,  2  Saund.  47  notes. 


WILLIAMSON  V.  WILSON.  437 

the  sheriff  dies  at  any  time  after  he  has  levied  the  execution,  and 
before  he  has  brought  the  money  into  court  or  satisfied  the  plain- 
tiff, that  the  personal  property'  so  taken  in  execution  would  pass  to 
his  executor  or  administrator  as  parcel  of  his  estate,  which  should 
be  kept  separate,  and  applied  exclusively  in  satisfaction  of  the  claim 
for  which  it  had  been  taken. 

But  the  act  of  1813,  ch.  102,  s.  1,  has  provided  somewhat  dif- 
ferently for  this  matter,  by  declaring,  that  where  it  appears  by  the 
return  of  the  late  sheriff,  that  the  real  or  personal  property  so  taken 
by  him  had  not  been  sold,  the  court  may,  on  motion,  order  a  vendi- 
tioni exponas  to  the  new  sheriff,  upon  which  the  property,  which 
had  been  so  seized,  may  be  taken  wherever  found,  and  sold  as 
upon  the  original  execution. 

This  provision,  however,  extends  only  to  cases  where  it  appears 
by  the  return,  that  the  property  taken  in  execution  specifically 
remains  unsold ;  and  therefore,  where  it  does  not  so  appear,  or 
where  the  sheriff  had  made  sale  and  died  before  the  money  was 
brought  in  or  paid  to  the  plaintiff,  there,  as  the  property  or  money 
in  his  hands  had  passed  to  his  personal  representatives,  they  must 
be  held  liable  to  the  plaintiff  for  whose  benefit  the  execution 
issued.  And  although  no  action  can  be  maintained  against  the 
executor  of  a  sheriff  grounded  on  the  misfeasance  or  breach  of 
duty  of  his  testator,  yet  the  plaintiff  may  recover  of  the  executor 
of  the  sheriff,  in  an  action  of  debt,  any  money  which  he  had  levied 
under  a  ^enyacias  and  had  not  paid  over. (5)  In  Maryland  the 
plaintiff  would  be  allowed  to  recover  his  debt  by  a  suit  upon  the 
sheriff's  bond,  and  then  the  sureties  who  had  thus  been  compelled 
to  pay  the  debt  would  have  a  right  to  take  the  place  of  the  plaintiff 
as  against  the  representatives  of  the  sheriff. 

Upon  analogous  principles,  on  the  death  of  a  receiver  appointed 
by  this  court,  it  appears  to  bs  clear,  that  in  so  far  as  he  had  a  mere 
duty  to  perform,  like  that  of  a  sheriff  in  safiely  keeping  his  prison- 
ers, nothing  could  devolve  upon  his  representatives  ;  but  that  where 
he  had  acquired  a  qualified  interest  in  personal  propert)-  as  a  bailee, 
and  which  it  was  his  duty  to  keep  apart  from  his  own,  and  account 
for;  and  where  he  had,  in  obedience  to  an  order,  sold  and  con- 
verted property  into  money,  such  property  and  money  must  be  con- 
sidered as  having  rightfully  passed  into  the  hands  of  his  personal, 
representatives,  as  the  only,  or  the  most   sure  means   of  saving 


(s)  Clerk  v.  Withers,  6  Mod.  299  ;  Adair  v.  Shaw,  1  Scho.  &  Lefr.  265. 


438  WILLIAMSON  V.  WILSON. 

harmless  the  estate  of  the  deceased  from  the  liability  to  which  he 
had  subjected  it,  by  becoming  bound  as  a  receiver. (if) 

Hence,  considering  the  property  and  money  which  the  late 
receiver  Jacob  Schley  had  admitted  to  be  in  his  hands,  as  having 
passed  into  the  hands  of  his  administrators,  they  must  be  viewed 
as  standing  in  all  respects  in  his  place  :  and  as  the  personal  repre- 
sentatives of  their  intestate,  there  can  be  no  more  impropriety  in 
proceeding  against  them  in  this  court  by  an  order  nisi,  foUow.ed  by 
an  attachment  on  their  failing  to  shew  good  cause,  than  in  sub- 
jecting them  to  an  action  at  common  law  for  the  recovery  of  a 
debt  due  by  their  intestate,  in  respect  of  the  assets  which  may 
have  come  to  their  hands.  I  shall  therefore  allow  them  to  be  pro- 
ceeded against  in  the  like  summary  manner  as  would  have  been 
permitted  against  their  intestate  himself  were  he  now  alive. 

Whereupon  it  is  ordered,  that  John  Scott  be  and  he  is  hereby 
appointed  a  receiver  in  the  place  of  the  late  Jacob  Schley,  with  full 
power  and  authority  to  act  in  all  respects  as  Schley  could  or  might 
have  acted ;  that  before  John  Scott  proceeds  to  act  as  a  receiver  by 
virtue  of  this  order,  he  shall  give  bond  to  the  State  of  Maryland  in 
the  penalty  of  thirty  thousand  dollars  with  a  surety  or  sureties,  to 
be  approved  by  the  Chancellor,  for  the  faithful  performance  of  the 
trust  reposed  in  him  by  this  order,  or  which  may  be  reposed  in  him 
by  any  future  order  in  the  premises ;  and  that  Joh7i  Scott  shall  be 
allowed  no  commission  for  his  trouble  in  receiving  and  distributing 
any  property  or  money  which  may  come  to  his  hands  under  this 
order  as  receiver. 

And  it  is  further  oi-dered,  that  Anna  B.  Schley,  John  J.  Mayer, 
and  Henry  Schroeder  jnn^r,  administrators  of  the  late  Jacob  Schley, 
make  report  and  render  unto  this  court  a  full  and  fair  account  of  all 
the  property  or  money  which  may  have  come  to  the  hands  of  their 
intestate,  the  late  Jacob  Schley,  and  of  all  his  proceedings  while  he 
acted  as  receiver  in  this  case  ;  and  also,  that  they  render  a  full  and 
fair  account  of  all  property  and  money  wdiich  had  so  come  to  the 
hands  of  their  intestate,  and  which  may  be  now  in  their  hands ; 
and  of  their  proceedings  in  relation  thereto.  And  the  said  admin- 
istrators are  hereby  directed  and  required  to  yield  up,  deliver  over, 
and  pay  unto  John  Scott,  so  soon  as  he  shall  have  been  qualified  to 
act  as  receiver  as  before  mentioned,  all  the  goods,  wares,  merchan- 
dise and  moneys,  books,  papers,  and  effects  of  the  firm  of  Wilson, 


(t)  Shelf.  Lun.  151. 


WILLIAMSON  V.  WILSON.  439 

Williamson  &  Company,  which  may  have  been  received  by  their 
intestate,  and  have  come  to  their  hands,  or  which  they  may  now 
hold,  or  have  under  their  control :  Provided,  that  a  copy  of  this 
order,  together  with  a  copy  of  this  petition  be  served  on  them,  on 
or  before  the  tenth  instant,  to  the  end,  that  they  may  shew  cause, 
if  any  they  have,  on  the  first  day  of  June  next,  why  they  should 
not  fully  and  in  all  respects  comply  with  this  order. 


On  motion  it  was  also,  on  the  same  day,  ordered,  that  the  state- 
ments of  claims  heretofore  made  and  reported  by  the  auditor, 
be  confirmed,  and  the  receiver  directed  to  apply  the  proceeds 
accordingly  ;  except  as  to  ail  those  claims,  that  had  been  at  all 
objected  to  by  the  auditor,  or  to  the  allowance  of  which  any  excep- 
tions had  been  filed,  which  claims  were  suspended  until  further 
order. 

On  the  petition  and  representation  of  the  receiver  John  Scott. 

21st  May,  1827. — ^^Blandi,  Chancellor. — It  was  and  still  is  my 
understanding  and  intention  to  allow  to  John  Scott  as  receiver  no 
commission  on  any  sums  for  the  receipt  an^  disbursement  of  which 
a  commission  had  been  allowed  to  the  late  receiver  Jacob  Schley  ; 
it  being  my  determination,  if  possible,  not  to  charge  the  estate 
with  double  commissions.  I  had  presumed  that  the  late  receiver's 
account  comprehended  the  whole  estate ;  and  that  the  commis- 
sions had  been  computed  and  allowed  accordingly ;  but,  should 
that  not  be  the  case,  then  the  receiver  John  Scott  will  be  allowed 
the  usual  commissions  on  all  sums  on  which  no  commission  had 
been  previously  charged  and  allowed. 


After  which  the  case  was  again  brought  before  the  court  on  the 
report  of  Anna  B.  Schley,  John  J.  Mayer  and  Henry  Schroeder 
jun'r,  administrators  of  Jacob  Schley  deceased,  made  in  pursuance 
of  the  order  of  the  fourth  of  May  last ;  and  the  receipt  of  John 
Scott  the  receiver  therewith  filed. 

1st  June,  1827. — Bland,  Chancellor. — Ordered,  that  the  said 
administrators  bring  into  this  court  the  sum  of  seven  thousand  four 
hundred  and  two  dollars  and  fifty-one  cents,  the  balance  remaining 
in  their  hands  after  deducting  the  commissions  and  fees  as  set  forth 
in  their  said  report ;  which  sum  the  register  is  hereby  directed  to 
deposite  in  the  Farmers  Bank  of  Mar)^^land  in  the  usual  manner  to  the 
credit  of  this  case.  And  it  is  further  ordered,  that  the  bond  given 
by  tlie  late  Jacob  Schley,  as  receiver,  be  delivered  up  to  the  admin- 


440  WILLIAMSON  V.  WILSON. 

istrators  to  be  cancelled  ;  and  that  they  with  the  sureties  in  the  said 
bond,  be  finally  discharged :  Provided  that  a  copy  of  the  said 
report  and  of  this  order  be  served  on  the  present  receiver,  on  or 
before  the  twelfth  day  of  this  month.  Unless  good  cause  to  the 
contrary  be  shewn  during  and  before  the  close  of  the  next  July 
term  by  the  said  receiver,  or  by  the  parties  to  this  case,  or  by  some 
one  interested  therein. 


Afterwards  on  the  19th  April,  1828,  copies  having  been  served 
as  required,  and  no  cause  shewn,  the  bond  of  the  late  receiver  was 
ordered  to  be  delivered  up,  and  his  administrators  were  discharged. 
This  case  still  remained  open,  and  the  w^hole  of  the  funds  of  the 
firm  not  having  been  finally  disposed  of,  four  other  creditors  filed 
the  vouchers  of  their  claims  in  the  chancery  oflfice  after  the  day 
limited  by  the  orders  of  the  21st  July  and  the  17th  of  November, 
1826,  and  prayed  to  be  allowed  to  come  in  for  a  due  proportion. 
The  auditor  reported  a  statement  of  their  claims  as  usual,  at  the 
request  of  the  claimants  ;  and  also  made  several  other  reports  at 
the  instance  of  creditors  wdio  had  supplied  the  want  of  proof  or 
removed  the  objections  to  their  claims,  since  the  first  general 
report ;  and  several  of  those  intermediate  statements  had  been 
confirmed,  and  the  claims  ordered  to  be  paid  accordingly ;  after 
which  the  case  was  submitted  to  obtain  an  order  for  bringing  it  to 
a  final  conclusion. 

24:thMay,  1828. — Bland,  Chancellor. — According  to  the  course 
of  this  court,  in  creditors'  suits,  or  w^here  the  case,  by  any  pro- 
ceeding, interposed  after  its  institution,  has  been  necessarily  cast 
into  the  form  of  a  creditors'  suit,  it  is  indispensably  necessary, 
before  any  distribution  can  be  made,  or  satisfaction  awarded  to  any 
of  the  creditors,  that  they  should  be  called  on  by  a  publication  in 
some  newspaper,  or  other  public  notice,  to  file  the  vouchers  of 
their  claims  in  the  chancery  office,  on  or  before  a  specified  day, 
most  commonly  four  months  after  the  day  of  the  first  publication  ; 
but  a  shorter  period  may  be  limited  where  the  funds  are  small,  or 
the  transactions  appear  to  be  but  little  dispersed.  After  the  time 
allowed  to  the  creditors  for  bringing  in  their  claims  has  expired ; 
the  auditor,  at  the  instance  of  any  one  concerned,  may  make  and 
report  an  account  distributing  the  whole  of  the  funds  in  full  satis- 
faction, or  in  dxie  proportion  among  the  creditors ;  giving  a  prefer- 
ence to  those  who  may  appear  to  be  entitled  to  it.  In  this  first 
general  report,  all  the  claims  having  any  plausible  or  probable 


WILLIAMSON  V.  WILSON.  '441 

validity,  or  which  may  ultimately  be  sustained  by  proof,  are  stated 
as  of  course  by  the  auditor,  who  in  this,  as  in  all  subsequent 
reports,  in  which  he  first  introduces  a  claim  to  the  notice  of  the 
court,  informs  the  Chancellor  of  all  the  objections  and  spe- 
cial circumstances  in  relation  to  it,  as  they  appear  from  the  pro- 
ceedings and  vouchers  submitted  to  him.  But  after  the  day 
limited  for  bringing  in  claims  is  passed,  and  at  any  time  before  the 
funds  have  been  ordered  to  be  distributed,  any  other  creditor  may 
bring  in  his  claim,  and  he  will  be  put  upon  a  footing  with  the  other 
creditors  so  far  as  it  can  be  done  from  the  funds  then  remaining  in 
court,  by  restating  the  account  at  his  cost. 

In  a  proper  creditors'  suit  the-  decree  for  a  sale  of  an  estate  for 
the  satisfaction  of  creditors,  in  general,  is  in  itself  a  final  decision 
in  favour  of  the  claim  of  the  originally  suing  creditor ;  because 
there  can  be  no  such  decree  unless  the  plaintiff  establishes  his 
claim  in  whole  or  in  part.  And  therefore  in  such  case,  where  the 
whole  amount  claimed  by  the  plaintiff  has  not  been  established,  it 
is  proper,  that  the  decree  should  expressly  specify  the  debt  decided 
to  be  due ;  leaving  the  other  claims  or  parts  of  claims  of  the  plain- 
tiff as  stated  in  the  bill  to  come  in  after,  and  be  finally  disposed  of 
on  the  usual  application  for  further  directions  as  to  them  and  other 
claims. 

The  auditor's  first  general  report  having  prepared  and  arranged 
all  the  materials  for  the  judgment  of  the  court,  is  usually  suffered 
to  stand  over  as  of  course  some  short  time,  after  it  has  been 
returned  and  filed  ;  during  which  time,  or  before  it  was  made,  a 
plaintiff,  or  a  defendant  or  a  co-creditor,  who  has  not  by  any  pre- 
vious act  lost  his  opportunity  or  waived  his  right  to  do  so,  may 
plead  the  statute  of  limitations  or  put  in  any  exception  to  the  claim 
of  any  creditor,  upon  which  he  may  ask  the  judgment  of  the  court. 
If  such  exception  presents  a  question  of  fact';  an  answer  on  oath 
may  be  called  for,  and  proofs  taken  in  relation  to  it ;  but  if  it  pre- 
sents only  a  question  of  law,  then,  or  after  the  answers  and  proofs 
have  been  returned  and  filed,  a  day  may  be  appointed  for  the  hear- 
ing of  the  matter.  But  if  after  the  lapse  of  a  reasonable  time  no 
exceptions  are  taken  to  the  auditor's  first  general  report,  it  may  be 
confirmed  as  to  all  claims,  not  objected  to,  and  the  payment  of 
them  be  ordered  accordingly.  If  a  creditor  finds  it  necessary  to 
have  time  to  obtain  testimony  to  sustain  his  claim  and  remove  the 
objections  made  against  it,  he  may  have  time  allowed  him  to  col- 
lect his  proofs  for  that  purpose  within  or  beyond  the  jurisdiction 

56 


442  WILLIAMSON  V.  WILSON. 

of  the  court ;  and  the  decision  may  be  postponed  and  the  amount 
set  apart  to  meet  it  reserved  accordingly. 

But  after  a  reasonable  time  has  elapsed  ;  and  where  it  does  not 
appear,  that  any  of  the  creditors  whose  claims  have  been  objected 
to  have  been  allowed  time  for  further  proof  which  had  not  then 
expired,  and  there  are  still  some  claims,  the  objections  to  which 
have  not  been  removed,  the  case  may  be  referred'  to  the  auditor 
with  directions  to  state  a  final  account  excluding  all  claims  not 
then  sufficiently  authenticated  so  as  to  bring  the  whole  controversy 
to  a  final  conclusion.     This  case  now  stands  in  that  situation. 

Whereupon  it  is  ordered,  that  this  case  be  and  the  same  is  hereby 
referred  to  the  auditor  with  directions  to  state  a  final  account, 
from  which  he  will  exclude  all  claims  not  now  sufficiently  authen- 
ticated ;  and  also  those  from  which  the  auditor's  objections,  as 
stated  in  his  former  reports,  have  not  been  removed.  All  objec- 
tions heretofore  filed  by  any  party  against  the  allowance  of  any 
claims,  which  have  not  been  determined  by  the  court  to  be  valid, 
are  hereby  overruled. 


Notwithstanding  tliis  order,  the  parties  appear  to  have  acquiesced 
in  leaving  the  case  open,  or  to  have  waived  the  right  to  call  for  a 
final  account  as  ordered ;  for,  on  the  26th  May  1830,  a  special 
confirmation  of  the  auditor's  report  of  the  22d  of  May  1828  was 
called  for  and  ordered  accordingly,  by  which  it  would  seem  that 
the  case  had  been  brought  to  a  final  termination ;  but  the  objec- 
tions to  claim  No.  21,  27,  and  ^8  having  been  withdrawn,  the  case 
was  again  submitted,  upon  which  on  the  3d  of  May  1831,  it  was 
sent  to  the  auditor  to  state  a  final  account  as  required  by  the  order 
of  the  24th  of  May  1828. 


JONES  r.  JONES.  443 


JONES  r.  JONES. 

Land  was  not  liable  to  be  taken  and  sold  to  satisfy  a  debt  due  to  a  citizen,  until  made 
so  by  statute  ;  but  it  might  always  be  taken  in  execution  to  satisfy  a  debt  due  to 
the  State ;  for  which  it  is  bound,  by  act  of  assemblj-,  from  the  da}-  of  the  institu- 
tion of  the  suit. 

Under  a  fien  facias  levied  upon  the  land  of  the  defendant  in  his  lifetime,  it  may  be 
sold  after  his  death. 

By  a  sale  of  land  under  a  fieri  facias,  it  was  held  by  the  Chancellor,  that  it  was 
thereby  converted  into  personalty ;  and  that  the  surplus  should  be  paid  to  the  per- 
sonal representative  of  the  decejised  defendant ;  but  the  Court  of  Appeals  held 
and  ordered  otherwise. 

Land  may  by  operation  of  several  forms  of  judicial  proceeding  be  converted  into 
personal  estate. 

This  court  cannot  order  a  sheriff,  who  has  in  his  hands  money  made  under  an  execu- 
tion from  another  court,  to  bring  it  into  this  court. 

This  was  a  creditors'  bill,  filed  on  the  14th  of  February  1827, 
by  Hiram  Jones  and  Elizabeth  Jones,  against  Martha  Ann  Jones  and 
Emeline  Jones,  infant  heirs  of  the  late  Jesse  Jones,  Richard  Spencer 
jun'r,  and  Edward  Brown. 

The  bill  states,  that  the  defendant  Spencer  had,  on  the  1st  of 
October  1824,  recovered  two  judgments  against  Jesse  Jones,  in  his 
lifetime,  the  one  for  $230  with  interest  from  the  23d  of  January 
1823  and  costs  ;  and  the  other  for  $167  with  interest  from  the  27th 
of  May  1824  and  costs ;  which  two  judgments  Spencer  had  assigned 
to  this  plaintiff  Hiram  Jones ;  that  Jesse  Jones  was,  at  the  time  of 
his  death,  indebted,  by  a  single  bill,  to  the  plaintiff  Hiram  Jones 
in  the  sum  of  $79  25,  with  interest  from  the  4th  of  September 
1823  ;  that  Jesse  Jones,  at  the  time  of  his  death,  was  indebted  to 
the  plaintiff  Elizabeth  Jones,  by  bond,  in  the  sum  of  $868  27 
w-ith  interest  from  the  16th  of  April  1825  ;  that  Jesse  Jones  died 
intestate,  seized  of  about  twenty  acres  of  land,  leaving  a  widow 
and  the  two  infant  defendants  his  children  and  heirs  at  law  ;  that 
there  has  been  no  administration  upon  his  personal  estate,  the  whole 
or  nearly  all  of  which  had  been  sold  under  executions  which  had 
been  levied  upon  it  previous  to  his  decease. 

It  further  appears,  from  the  bill  and  its  exhibits,  that  Thomas 
Dawson  had  brought  suit  in  Kent  County  Court,  and,  on  the  17th 
of  March  1823,  recovered  judgment  against  Jesse  Joi\es,  from 
which  Jones  appealed  ;  that  on  the  7th  of  June  1824  the  judgment 
of  the  county  court  was  affirmed  by  the  Court  of  Appeals,  for  the 
sum  of  $250  with  interest  from  the  12th  of  July  1820,  and  costs-, 


444  JONES  V.  JONES. 

that  on  the  1st  of  July  1824  ^  fieri  facias  was  issued  on  this  judg- 
ment, from  the  Court  of  Appeals  ;  and  on  the  16th  of  August 
following  this  defendant  Brown,  being  then  sheriff  of  Kent  county, 
levied  it  on  a  tract  of  land,  the  property  oi  Jesse  Jones  ;  that  Jesse 
JoneSj  after  having  made  a  partial  payment  to  this  sheriff,  died  in 
the  month  of  August  1825 ;  that  after  his  death  the  lands  which 
had  been  so  taken  in  execution  were,  on  the  3d  of  September 
1825,  sold  by  this  sheriff  i>/'Oww,  subject  to  the  dower  of  the  widow 
of  the  late  David  Jones,  and  of  the  widow  of  the  late  Jesse  Jones  ; 
that  from  the  proceeds  of  the  sale,  this  sheriff  Brown  had  paid  the 
whole  amount  due  to  Dawson  with  the  costs  ;  and  had  retained  to 
the  amount  of  his  own  poundage  fees  ;  and  also  the  sum  of  $65  50 
for  the  payment  of  taxes  and  officers'  fees  placed  in  his  hands  for 
collection,  leaving  a  balance  in  his  hands  of  $1451   38. 

Upon  all  which  the  plaintiffs  by  their  bill  prayed,  that  the  land 
of  which  Jesse  Jones  died  seized  might  be  sold  ;  that  the  proceeds 
thereof,  with  the  balance  remaining  in  the  hands  of  the  defendant 
Brown,  might  be  paid  into  the  hands  of  a  trustee  appointed  by  this 
court,  to  be  applied,  under  its  direction,  to  the  payment  of  their 
debts,  and  such  other  claims,  if  any,  as  might  be  due  from  the 
intestate  Jesse  Jones  ;  and  that  they  might  have  such  other  relief  as 
was  suited  to  the  nature  of  their  case. 

The  defendants  Spencer  and  Brown  each  put  in  a  separate 
answer ;  the  infant  defendants  answered  jointly  by  their  guardian ; 
and  all  of  them  admitted  the  truth  of  the  allegations  of  the  bill. 

IQth  July,  1827. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing  without  opposition  from  the  defendants,  the  soli- 
citor of  the  plaintiffs  was  fully  heard,  and  the  proceedings  read  and 
considered. 

The  peculiar  nature  of  this  case  seems  to  require  a  more  than 
usually  attentive  consideration.  Putting  aside  so  much  of  it  as 
relates  to  the  small  parcel  of  land  of  which  the  intestate  died 
seized,  about  which  there  can  be  no  difficulty;  this  is  the  case  of 
a  creditors'  bill,  in  which  it  appears,  that  the  real  estate  of  the  debtor 
had  been  taken  in  execution,  during  his  lifetime,  and  sold  after 
liis  death,  leaving  a  balance,  which  even  yet  remains  in  the  hands 
of  the  sheriff  whose  official  term  must  have  since  expired,  and  who 
has  been  brought  here  as  a  defendant,  unassociated  with  any  per- 
•sonal  representative  of  the  intestate.  These  circumstances  present 
a  case  in  which  it  becomes  necessary  to  determine  the  extent  of  the 
power  of  the  sheriff  to  follow  out,  after  the  death  of  the  defendant, 


JONES  V.  JONES.  445 

the  authority  conferred  on  him  by  the  fieri  facias  he  had  previously 
levied  ;  and  if  it  should  appear,  that  his  authority  to  proceed 
with  the  execution  was  well  founded,  to  ascertain  whether  the 
surplus  of  the  proceeds  of  the  sale,  so  made,  is  to  be  considered 
as  real  assets  to  be  taken  from  the  hands  of  the  heirs,  or  to  be 
accounted  for  as  personal  assets  by  an  administrator  of  the  intes- 
tate ;  and  also  to  inquire  whether  there  is  any  mode  in  which  this 
court,  by  any  exercise  of  power  within  its  own  legitimate  sphere, 
can  compel  an  officer  of  another  and  a  superior  tribunal  to  place  a 
fund,  now  in  his  hands  by  their  authority,  under  the  direction  of 
this  court  to  be  disposed  of  as  prayed  by  these  plaintiffs. 

It  was  a  well  settled  principle  of  the  common  law  of  England, 
that  the  real  estate  of  a  debtor  could  not  be  taken  in  execution  at 
the  suit  of  a  citizen  creditor,  and  sold  for  the  satisfaction  of  the 
debt.  This  rule  was  considered  as  a  fair  and  necessary  result  from 
the  nature  of  the  feudal  tenures,  according  to  which  all  the  lands 
of  that  country  were  held.  And,  as  the  most  liberal  species  of 
those  tenures  was  expressly  declared  to  be  that  by  which  all  the 
lands  of  Maryland  should  be  held,  it  followed,  that  real  estate 
could  be  no  further  subject  to  be  taken  in  execution  here  than  the 
same  kind  of  estate  was  liable  in  England. (a) 

In  the  case  of  the  king,  however,  an  execution  always  issued 
against  the  lands  as  well  as  the  goods  of  a  public  debtor ;  because 
the  debtor  was  considered  as  being  not  only  bound  in  person,  but 
as  a  feudatory  who  held  mediately  or  immediately  from  the  king ; 
and  therefore,  holding  what  he  had  from  the  king,  he  was  from 
thence  to  satisfy  what  he  owed  to  tlie  king.(6)  As  a  consequence 
of  this  liability,  and  for  the  public  benefit,  if  a  judgment  was 
obtained  against  a  public  debtor  by  the  king,  he  thereby  acquired 
a  lien  upon  the  real  estate  of  such  debtor,  which  took  effect  not 
merely  from  the  date  of  the  judgment,  but  by  relation  from  the 
commencement  of  the  suit  to  the  exclusion  of  all  subsequent 
incumbrances. (c)  In  England  the  king's  debt  is  preferred  in  exe- 
cution and  in  the  administration  of  a  deceased's  estate,  to  that  of 
a  citizen ;  which  right  of  preference  was  in  Maryland  extended  to 
the  lord  proprietary,  (rf)  After  our  revolutioa  it  was  held  to  have 
devolved,  according  to  the  principles  of  the  common  law,  upon 


(a)  Charter  of  Maryland,  s.  5  h  IS;  Gilb.  Exch.  S9.—{b)  Gilb.  Execu.  3. 
(c)  Pow.  Mort.  by  Coven,  c.  23,  s.  9  ;  Gilb.  Exch.  93  ;  Rorke  v.  Dayrell,  4  T.  R.  410 ; 
Sug.  Pow.  lSi.—{d)  1650,  ch.  2S. 


446  JONES  V.  JONES. 

the  State  ;(e)  and  it  ha's  been  expressly  declared,  that  all  lands  and 
tenements  belonging  to  any  public  debtor,  after  the  commencement 

(e)  The  State  v.  Rogers,  2  H.  &  McH.  193;  Hollingsworth  v.  Patten,  3  H.  & 
McH.  125;  Murray  v.  Ridley,  3  H.  k.  McH.  171. 

BiRCHFiELD  FOR  THE  Ki.vG  V.  Brown. — This  bill  was  filed  in  the  year  1713  by 
Maurice  Birchfield,  surveyor  general  of  the  southern  district  of  America,  for  and  on 
behalf  of  th6  king  against  Joseph  Brown,.  Margaret  Brown,  Richard  Bennett,  and 
Richard  SmitJi,  the  representatives  and  debtors  of  Peregrine  Brown  late  of  London, 
merchant,  to  recover  a  debt  due  from  the  deceased  to  the  crown.  The  case  standing 
ready  for  hearing  was  brought  before  the  court. 

9th  October,  1716. — Hart,  Chancellor. — Decreed,  that  the  several  tracts  of  land 
hereafter  mentioned  be  sold  towards  satisfying  and  paying  his  sacred  majesty  king 
George  the  debt  in  tlie  bill  mentioned  to  be  due  from  the  deceased  Peregrine  Brown ; 
and  that  the  sale  may  be  made  to  the  best  advantage,  notice  be  given  of  such  sale  to 
begin  the  2Sth  day  of  April  next,  and  to  continue  till  the  20th  of  May  following. 
And  that  every  purchaser  of  the  same,  or  .any  pail  thereof,  shall  have,  hold,  and 
enjoy  the  same  to  him,  or  them,  by  a  good  and  perfect  estate  in  fee  simple,  in  such 
manner  as  if  the  said  Peregrine  Brown  had  conveyed  the  same  according  to  the  exi- 
gence of  the  law:  viz.  Turkey  Point,  one  thousand  acres  in  Cecil  countj',  &,c.  8cc. 


After  which  the  case  was  again  brought  before  the  court  under  other  circumstances. 

Zd  September,  1717. — Hart,  Chancellor. — Ordered,  that  the  persons  discovered  to 
be  debtors  to  the  estate  of  Peregiine  Brown  deceased,  particularly  James  Frisby  and 
Peter  Carmack,  be  made  parties  to  the  bill  filed  in  this  court  by  Maurice  Birchfield 
on  behalf  of  the  crown  against  Joseph  and  IMargaret  Brown  and  otliers.  And  that 
the  personal  estate  and  several  debts  due  to  Peregrine  Brown,  and  mentioned  in  the 
answer  of  Richard  Bennett  and  Joseph  Brown,  be  liable  to  the  demand  of  the  crown 
in  such  manner  as  they  would  be  to  Peregrine  Brown.  - 


Some  time  after  Peter  Carmack,  who,  with  others,  had,  by  a  separate  bill,  been 
made  a  party,  put  in  his  answer  tliereto,  in  which,  among  other  things,  he  stated, 
that  the  matter  in  controversy  had  been  refbrred  to  the  arbitration  of  certam  persons, 
who  had  made  an  award  thereupon  discharging  him ;  upon  which  award  he  relied. 

13th  July,  1723.— TiLGHMAN,  Chancellor. — It  seems,  that  Maurice  Birchfield 
negotiated  the  affair  Vvith  Carmack,  by  way  of  arbitration,  and  was  fully  apprised  of 
the  state  of  the  accounts  betwixt  Brown  and  Carmack,  and  seemed  well  satisfied 
therewith  and  with  the  award,  and  that  Peregrine  Brown  wa?  considerably  in  his, 
the  said  Carmack's,  debt.  And  it  also  seemSj  that  Birchfield  sues  not  in  such  man- 
ner as  to  entitle  himself  to  the  advantages  due  to  the  prerogative,  nor  agreeable  to 
the  statute  of  the  thirfj^-third  of  Henry  the  eighth,  chapter  thirty-ninth,  but  rather 
as  a  common  person,  or  assignee  of  a  common  person.  It  is  therefore  adjudged, 
ordered,  and  decreed,  that  t!ie  bill  of  complaint  of  the  said  Maurice  Birchfield  be 
dismissed,  and  that  the  said  Maurice  satisfy  and  pay  unto  tlie  said  Peter  Carmack, 

pounds  of  tobacco  for  his  costs  sustained  by  reason  of  his  unjust  vexation 

in  this  part.— C/wn.  Records,  Lib.  P.  L.  G8,  317,  387,  392,812,  and  892 ;  Kilt  if  s  Rep. 
75,  205.      '  

This,  and  other  similar  cases  which  might  be  adduced  from  the  records,  shew,  that 
the  Court  of  Chancery  of  ]\rar)'land,  before  the  revolution,  was,  in  manj--  instances, 
resorted  to  as  a  court  of  exchequer.  And,  in  relation  to  debts  due  to  the  State,  it 
may  be  well  to  recollect,  that,  according  to  the  English  law,  not  only  the  real  and 
personal  estate  of  a  public  debtor  arc  liable  to  be  talcen  ip  execution  and  sold  for 


JONES  V.  JONES  447 

of  suit  against  him,  shall  be  liable  to  execution  in  whatever  hands 
or  possession  they  may  be  found. (y")  By  which,  legislative  enact- 
ment the  State's  lien,  as  in  England,  relates  not  merely  to  the  date 
of  the  judgment,  but  to  the  commencement  of  the  action.  Whence 
it  follows,  that  the  liability  of  the  real  estate  of  a  debtor  to  the 
State  to  be  taken  in  execution,  and  the  lien  of  the  State  incident 
to  such  liability,  ai'e  founded  upon  the  common  law  and  the  acts  of 
assembly  passed  in  express  relation  to  debts  due  to  the  State. 

But  the  general  rule  of  the  common  law  in  regard  to  the  liability 
of  real  -estate  to  be  taken  in  execution  as  between  party  and  party, 
was  modified  by  a  statute  passed  in  the- year  1285, (g-)  which  made 
such  estates  liable  to  be  partially  taken  in  execution.  This  statute, 
W' hich  gave  the  writ  of  elegit,  enlarged  the  remedy  of  the  creditor 
by  declaring,  that,  when  a  debt  was  recovered  or  damages  adjudged, 
it  should  be  in  the  election  of  the  plaintiff  to  have  o.  fieri  facias,  or 
to  have  all  the  debtor's  chattels  and  the  one  half  of  his  lands  deliv- 
ered to  him  until  the  debt  was  levied  to  a  reasonable  extent  ;(A) 
which  gave  the  election  immediately  that  the  debt  was  recov- 
ered ;  and  therefore  the  whole  land  was  held  to  be  bound 
from  the  day  of  the  rendition  of  the  judgment ;  and  those  con- 
cerned, it  was  presumed,  might  easily  ascertain  from  the  record  by 
what  judgments  the  lands  of  the  debtor  were  thus  bound.(i)  But 
as  some  inconvenience  arose,  because,  according  to  the  common 
law,  judgments  took  effect  by  relation  from  the  first  day  of  the 
term,  it  was  in  the  year  1676  declared  by  the  statute  of  frauds,(j) 
that  the  day  on  which  judgments  were  rendered  should  be  entered 
upon  the  record  ;  and  that  purchasers  should  be  charged  from  such 
time  only,  and  not  from  the  first  day  of  the  term  whereof  the  judg- 
ment was  entered.  This  then  was  the  nature  and  extent  of  the 
judicial  lien,  as  between  party  and  party,  with  which  the  Teal  estate 
of  a  debtor  might  become  bound  in  Mar^dand  as  well  as  in  Eng- 
land. And  this  judicial  lien  .was  afterwards  mainly  fortified  and 
enlarged  by  a  statute  passed  in  the  year  1732, (A')  applicable  only  to 

the  satisfaction  of  the  debt,  but  that  the  State  might  also  have,  what  is.  called,  an 
extent  in  aid,  or  a  process  to  be  levied  upon  debts  due  from  others  to  the  public  debtor 
to  the  fourth  degree ;  thus  taking  in  execution  choses  in  action,  and  bringing  the  debtors 
of  the  State's  debtor  before  the  court  to  answer  in  a  way  similar  to  that  of  a  garnishee 
under  a  foreign  attachment  Gilb.  Exche.  ch.  12.  Peicrsd.  Jlbri.  tit.  Extent,  B.  The 
act  of  Congress  of  the  20th  of  April,  18 IS,  ch.  7S,  s.  8,  gives  a  similar  right,  as  against 
corporations,  to  the  United  States.    The  United  States  v.  Robertson,  5  Peters,  659 

(/)  Maich  1778,  c.  9,  s.  6 ;  November  1787,  c.  40.— (g)  13  Ed.  1,  c.  18.— (A)  2  Inst. 
394.— (0  Gilb.  Execu.  37.— (j)  29  Car.  2,  c.  3,  s.  14 &.  15.— (/t)  5  Geo.  2,  c.  7. 


448  JONES  V.  JONES. 

the  then  colonies  of  Great  Britain,  and  received  as  law  in  Mary- 
land, which  subjected  the  whole  of  a  debtor's  real  estate  to  be 
taken  in  execution  and  sold  for  the  payment  of  his  debts. 

Whence  it  appears,  that  the  lien  arising  from  the  judgments  of 
Dawson  and  Spencer,  at  their  respective  dates,'  fastened  upon  the 
real  estate  of  Jesse  Jones,  adhered  to  it  after  his  death,  and  would 
have  followed  it  into  whosesoever  hands  it  might  have  passed  until 
they  w'ere  satisfied,  or  the  right  to  sue  out  an  execution  upon  them 
had  become  entirely  barred.  But  a  judicial  lien  of  this  kind  may 
exist  after  the  case  has  abated  by  the  death  of  a  party ;  and  yet  no 
execution  could  be  immediately  issued  against  the  lands  upon 
which  it  attached,  after  the  death  of  the  party,  until  the  judgment 
had  been  regularly  revived.  And  this  was  in  fact  the  situation  of 
Spencer^s  judgments.  Hence  although  it  will  be  necessary,  in  the 
further  consideration  of  this  case,  to  recollect  the  nature  and  extent 
of  the  judicial  lien  with  which  the  real  estate  of  Jesse  Jones  had 
been  encumbered  during  his  lifetime  ;  yet  the  authority  of  the 
sheriff  to  make  the  sale  he  did,  after  the  death  of  Jones,  under  the 
fieri  facias,  issued  on  Dawson^  judgment,  must  be  deduced  from 
other  principles  of  law% 

By  the  common  law  ^  fieri  facias  bound  the  goods  of  the  defend- 
ant from  its  teste,  so  that  any  sale  made  by  him,  after  that  time, 
was  void ;  because  it  was  thought,  that,  if  it  were  not  so,  every 
execution  might  be  avoided  by  a  sale  ;  and  it  was  presumed,  that 
the  sheriff  would  execute  such  writs  immediately ;  and  that  there 
would  be  thereby  such  notice  in  the  neighbourhood  as  to  prevent 
any  deception  or  fraud.  But  this  notion  of  a  retrospective  lien, 
going  back  to  the  teste  of  the  writ,  was  abused ;  writs  were  taken 
out  one  under  another,  so  aS  to  obtain  liens  upon  the  goods  of 
debtors,  without  delivering  them  to  the  sheriff,  by  which  means  their 
sales  and  all  commerce  were  made  uncertain.  To  prevent  which 
it  was  declared,  by  the  statute  of  frauds,  that  the  goods  should  be 
bound  only  from  the  actual  delivery  of  the  writ  to  the  sheriff;  by 
which  the  old  law  was,  in  effect,  restored,  which  supposed  the 
writ  to  be  delivered  to  the  sheriff  immediately  from  the  teste.{l) 

The  mere  seizure  under  the  fien  facias  does^not  absolutely  or 
totally  divest  the  defendant  of  all  property  in  the  goods  taken ;  but 
the  sheriff  thereby  acquires  only  a  qualified  property  in  them  ;  com- 
mensurate, however,   in  -all  tespects,  to  the  performance  of  the 

(0  Gilb.  Execu.  1-i. 


JONES  V.  JONES.  449 

duties  assigned  him  by  the  writ.  He  is  responsible  for  the  safety 
of  the  property,  and  therefore  may  have  an  action  against  any 
wrongdoer  who  attempts  to  injure  it,  or  to  take  it  from  him.  Yet, 
if  before  a  sale  the  defendant  pays  to  the  sheriff  the  whole  debt 
and  costs,  he  is  bound  to  redeliver  the  property  so  taken  in  execu- 
tion. The  statute  of  frauds  was  intended  for  the  benefit  of  pur- 
chasers and  creditors  only ;  therefore,  still,  as  relates  to  the  party 
himself,  the  judgment  and  Jieri  facias  relate  to  the  first  day  of  the 
ternf,  or  at  least  to  the  teste  of  the  writ ;  so  that  if  it  be  tested  in 
the  defendant's  lifetime  it  may  be  taken  out  and  executed  after  his 
death. (??i)  And  so,  on  the  other  hand,  if  the  plaintiff  dies,  after  a 
Jieri  Jucias  h?is  been  sued  out,  it  may  nevertheless  b(f  executed. 
And  as  the  writ  commands  the  sheriff  to  bring  the  money  into 
court,  it  is  his  duty  to  do  so  accordingly,  so  that  it  may  be  there 
deposited  to  be  paid,  if  the  plaintiff  be  dead,  to  his  executor  or 
administrator,  when  he  shall  appear ;  or,  if  the  defendant  be  dead, 
that  the  surplus,  if  any,  may  be  paid  to  his  legal  representatives 
when  they  may  come  prepared  to  shew  their  right  to  it.(n)  Hence 
it  is  clear,  that  this  positive  command  of  the  writ,  virtually  and 
necessarily  intercepts  the  property  in  its  course,  and  evicts  it  from 
the  hands  of  the  executor  or  administrator  of  the  deceased  defend- 
ant, who  died  after  it  bore  teste.[o) 

These  are  the  well  settled  principles  of  law  in  relation  to  the 
personal  property  of  the  defendant  against  whom  the  fieri  facias 
issued.  But,  as  in  England  real  estate  cannot  be  taken  in  execu- 
tion under  a  ^eri  yadas,  there  are  no  English  adjudications  in 
relation  to  a  case,  like  this,  where  \\vi  fieri  facias  had  been  levied 
upon  the  real  estate  of  the  debtor.  But,  the  statute,(;3)  which 
subjected  lands  to  be  sold  for  the  payment  of  debts  has  been  so 
interpreted,  and  carried  into  effect  here,  as  to  make  no  distinc- 
tion whatever  between  the  debtor's  real  and  personal  estate, 
so  far  as  it  may  be  affected  by  any  execution  bearing  teste  in  his  life- 
time.(7)  And  therefore,  by  analogy  to  the  principles  of  the  English 
law,  applicable  to  an  execution  against  the  personalty,  it  has  been  held 


(m)  Tidd,  Pra.  915;  Pow.  Mort.  by  Coven.  .275,  280,  513 ;  Odss  i'.  Woodward, 
2  Ld.  Raym.  850  ;  Bragner  i-.  Langmead,  7  T.  R.  20;  Docura  v.  Henry,  4  H.  &. 
McH.  480.— (n)  Tidd,  Pra.  915.— (0)  "Wilbraham  v.  Snow,  2  Saund.  47;  Oades  v. 
Woodward,  7  Mod.  9J  ;  Dr.  Needham's  Case,  12  Mod.  5;  Waghorne  rr  Lang- 
mead,  1  Bos.  &  Pul.  572;  Robinson  u.Tonge,  A  P.Will.  400.— (p)  5  Geo.  2,  c.  7. 
{q)  Barney  i-.  Patterson,  6  H.  Sc  J.  182  ;  Davidson  v.  Bcatty,  3  H.  k  McH.  616. 

57 


450  JONES  r.  JONES. 

in  this,  and  in  other  States,  in  which  this  English  statute  has  been 
received,  that  by  di  fieri  facias  which  bears  teste,  or  has  been  levied, 
during  the  lifetime  of  the  defendant,  his  real  estate  may  be  inter- 
cepted in  its  descent  and  evicted  from  the  hands  of  his  heir ;  who, 
if  he  happens  to  have  obtained  actual  possession  of  the  estate  after 
the  death  of  his  ancestor,  will  be  treated  merely  as  a  terre-tenant, 
w^hose  interest  cannot  be  allowed,  in  any  manner,  to  retard,  or 
turn  aside  the  execution  which  had  been  thus,  in  fact,  or  by  rela- 
tion, sued  out  in  the  lifetime  of  the  debtor. (r)  Whence  it  cldarly 
follows,  that  the  sale  of  Jesse  Jones'^  lands  made  after  his  death 
under  the  fieri  facias  issued  on  Dawson'' s  judgment  was,  in  all 
respects,  regular  and  lawful. 

The  next  inquiry  is,  how  far  the  judicial  proceedings,  to  which 
the  real  estate  of  Jesse  Jones  has  been  subjected,  have  produced  a 
change  in  its  character,  or  converted  it  from  realty  into  personalty .'' 
And  if  it  has  been  so  converted,  then  it  will  become  necessary  to 
ascertain  the  exact  point  of  time  at  which  that  very  important 
change  was  definitively  effected. 

The  writ  oi  fieri  facias  commands  the  sheriff  to  have  the  money 
in  court,  there  publicly  to  pay  the  party.  He  may  himself  pay  the 
plaintiff;  but  if  he  does  so,  it  will  be  at  his  peril ;  for  he  is  only 
perfectly  safe  in  bringing  the  money  into  court,  according  to  the 
express  command  of  the  writ.  The  sheriff  cannot  deliver  the  pro- 
perty taken  in  execution  to  the  plaintiff  in  satisfaction  of  his 
claim ;  he  must  sell  it  and  bring  in  the  money.  The  property  of 
the  defendant  is  to  be  taken  and  converted  by  a  sale  into  money ; 
and  hence,  if  the  judgment  be  afterwards  reversed  by  writ  of  error, 
the  defendant  shall  hot  be  restored  to  the  thing  in  specie,  but  the 
money  for  which  it  was  sold ;  for  the  fieri  facias  gave  the  sheriff 
authority  to  levy  the  money  of  the  goods,  so  that  he  was  obliged 
to  turn  the  goods  of  the  defendant  into  money  ;  and  therefore,  the 
restitution  must  be  of  what  the  execution  had  taken  from  him, 
which  was  'money,  and  not  the  thing  itself,  for  then  no  body  would 
buy.(s)  These  are  the  well  settled  principles  of  the  common 
law  in  relation  to  personal  property  taken  hi  execution  under  a 
fieri  facias  ;  and  the  statute  having  made  lands  liable  to  the 
payment  of  debts,  and  subject  to  the  like  remedies  and  pro- 
cess as  personal  estate, — it  follows,  upon  the  same  principles,  that 

()■)  Sir  William  Harbert's  Case,  3  Co.  12  ;  Winstead  v.  Winstead,  1  Hayw.  Rep- 
245 ;  Bealty  v.  Chapline,  2  H.  &  J.  19.— (s)  Gilb.  Execu.  16  &  20. 


JONES  V.  JONES.  451 

where  lands  have  been  sold,  under  a  Jieri  facias,  they  must  be 
considered  as  having  been  converted  into  personalty.  So  that  if 
the  judgment  should  be  afterwards  reversed,  the  title  of  the  pur- 
chaser cannot  be  affected  by  it ;  for  otherwise  there  would  be  no 
security  in  purchasing  at  sheriff's  sales. (^) 

Hence  the  surplus  of  the  proceeds  of  a  sale  of  lands,  as  well  as 
of  goods,  remaining  in  the  hands  of  the  sheriff  after  a  sale  made 
by  him  under  a  fieri  facias,  can  only  be  viewed  as  the  surplus  of 
that  money  which  he  was  commanded  by  th«  WTit  to  make  and 
bring  into  court.  And  hence  such  surplus  must  be  regarded  in  all 
respects  as  a  portion  of  the  personalty  of  the  defendant. 

From  a  case  reported,  as  having  been  considered  and  determined 
by  the  General  Court,  it  appears  that  Philemon  C.  Blake  had 
given  two  bonds  to  the  State  for  the  performance  of  his  official 
duties  as  sheriff;  on  which  the  State  sued,  and  having  obtained 
judgments  on  each  of  them,  issued  2l  fieri  facias  on  the  first  judg- 
ment, and  had  it  levied  upon  his  real  estate,  which  was  sold  for  a 
sufficiency  to  satisfy  the  first  judgment,  leaving  a  surplus  of  d£SO, 
which  was  then  in  the  hands  of  the  defendant.  The  only  question 
was,  whether  the  State  was  entitled  to  a  preference  from  the  com- 
mencement of  the  second  suit,  over  any  judgments  obtained  against 
Blake,  after  that  time.  As  to  which  it  was  held,  that  upon  the 
State's  obtaining  a  judgment  against  its  debtor,  the  act^f  assem- 
bly(i<)  gave  it  a  lien  upon  his  lands  by  relation  from  the  com- 
mencement of  the  suit,  into  whosesoever  hands  they  might  come ; 
and  therefore,  that  the  State  was  entitled  to  have  its  second  judg- 
ment satisfied  out  of  the  surplus  in  preference  to  any  judgment 
rendered  after  the  commencement  of  its  second  suit.(t') 

The  court  is  reported  to  have  said,  in  delivering  the  reasons  of 
their  judgment,  that  "  the  surplus  of  the  money  arising  from  the 
sale  of  the  said  Blake^s  land,  after  satisfying  the  first  judgment  of 
the  State,  remaining  in  the  hands  of  the  defendant,  is  to  be  consi- 
dered as  land,  and  subject  to  the  attachment  of  the  State,  issued  on 
the  second  judgment,  in  preference  to  the  claim  of  the  plaintiff. "(lo) 

But  the  only  question  was,  whether  the  lien  of  the  State  con- 
tinued to  adhere  to  the  proceeds  of  the  sale.  Whether  they  were 
to  be  considered  as  realty  or  personalty,  was,  therefore,  a  matter  of 
no  kind  of  importance ;   and  so  it  appears  from  the  general  tenor 

{t)  Davidson  v.  Beatty,  3  H.  &  McH.  616;  Bamey  v.  Patterson,  6  H.  &  J.  204. 
(u)  March  1778,  ch.  9,  s.  6.— (f)  Davidson  v.  Clayland,  1  H.  Si  J.  546.— (u^;  David- 
son V.  Clayland,  1  H.  Sc  J.  550. 


452  JONES  V.  JONES. 

of  the  arguments  of  the  cor.nsel,  as  well  as  of  the  opinion  of  the 
court.  The  question  turned  upon  the  construction  of  the  act  of 
assembly  as  to  the  continuance  of  the  State's  lien,  and  nothing 
more.  The  point,  whether  by  a  sale  under  a  Jieri  facias^ 
the  real  estate  had  been  converted  into  money  or  personalty, 
or  whether  the  surplus  was  to  be  regarded  as  real  or  personal 
estate,  could  not  have  arisen ;  because  either  alternative  might 
have  been  assumed ;  and,  upon  the  principles  laid  down,  the 
decision  must  have  been  the  same ;  and  therefore,  this  point 
could  not  have  been  in  the  mind  of  the  court  and  decided 
upon  in  that  case.  And  besides,  this  act  of  assembly(a:)  does,  in 
itself,  most  manifestly  regard  the  surplus  as  money  or  personalty ; 
for,  it  declares,  that  the  sheriff  shall  sell  the  lands  to  the  highest 
bidder,  and  shall  retain  sufficient  in  his  hands  to  pay  the  debt  and 
all  costs,  his  own  fees  included,  returning  the  overplus,  if  any,  to 
the  debtor ;  that  is,  he  shall  from  the  money,  into  wdiich  the  lands 
have  been  converted,  pay  the  debt,  returning  the  overplus  of  that 
money  to  the  debtor. 

There  is  therefore  nothing  to  be  found  in  that  case,  when  care- 
fully examined,  w^hieh  can  be  considered  as  at  all  at  variance  wdth 
the  general  and  well  settled  principles  of  the  common  law,  accord- 
ing to  which,  in  all  cases  where  personal  property  has  been  legally 
sold  under  ?i  fieri  facias,  it  is  held  to  be  made  into  money  ;  or,  if  it 
be  realty,  that  it  is  by  such  sale  converted  into  money,  or  personalty. 

It  frequently  occurs  in  this  court  on  creditors'  bills,  where  the 
originally  suing  creditor  claims  by  simple  contract,  and  the  land 
has  been  sold  to  satisfy  his  claim,  that  tliere  afterwards  come  in 
mortgagees  or  judgment  creditors  ;  in  which  case  the  sale  stands  and 
is  deemed  valid,  and  their  liens  are  considered  as  following  and 
binding  the  proceeds  of  the  sale  ;  not  because  those  proceeds  are 
held  to  be  realty ;  but  because  no  act  of  any  other  creditor,  or  of 
the  court  can  divest  a  mortgagee  or  judgment  creditor  of  his  lien 
upon  the  lands  without  giving  him  a  satisfaction,  according  to  the 
priority  of  his  lien,  out  of  the  proceeds,  of  the  sale  of  that  land 
which  had  been  so  bound.  If,  however,  in  a  creditors'  suit  against 
the  representatives  of  their  deceased  debtor,  his  lands  are  sold  to 
pay  his  debts,  leaving  a  surplus ;  or  if,  in  a  suit  by  a  mortgagee 
against  the  heirs  of  the  mortgagor,  the  mortgaged  land  is  sold  to 
pay  the  debt,  leaving  a  surplus,  in  such  cases  the  surplus  is  con- 


(X)  r.Iarch  1773,  ch.  P,  s.  7. 


JONES  V.  JONES,  453 

dered  as  a  part  of  the  proceeds  of  the  real  assets  taken  from 
the  heir ;  therefore,  must  be  paid  to  him,  not  to  the  executor 
or  administrator  of  his  ancestor ;  and,  consequently,  can  only  be 
taken  from  him  to  satisfy  other  claimants,  who  may  have  an  equity 
to  be  let  in,  after  the  distribution,  by  a  special  application,  under 
the  creditors'  bill,  or  in  the  suit  by  the  mortgagee,  upon  the  ground 
of  the  insufficiency  of  the  personal  estate  of  the  deceased. (3/) 

There  are  other  modes  of  judicial  proceeding  by  which  real 
estate  may  be  changed  into  personalty,  or  by  which  lands  may  be 
converted  into  money  or  choses  in  action.  This  often  occurs  under 
the  acts  of  assembly  directing  the  course  of  descents  ;  according 
to  which,  where  the  lands  of  an  intestate  are  incapable  of  being 
divided  among  his  heirs  without  loss,  they  may,  on  application  to 
the  proper  court  of  law,  be  ordered  to  be  sold,  and  the  proceeds 
of  the  sale,  or  the  bonds  of  the  purchaser,  divided  among  the 
heirs.  But,  the  exact  point  of  time  when  the  judicial  proceeding, 
instituted  for  that  purpose,  had  effected  a  change  in  the  nature  of 
the  property,  was  considered  as  a  most  interesting  question  in  its 
consequences  to  the  relative  rights  of  the  parties.  As  to  which  it 
was  held,  after  mature  deliberation,  that  the  mutation  of  the  estate, 
from  real  to  personal,  may  be  determined  to  be  complete  when  the 
commissioners'  sale  is  ratified  by  the  court,  and  the  purchaser  has 
complied  with  the  terms  of  it,  by  paying  the  money,  if  the  sale  is 
for  cash,  or  by  giving  bonds  to  the  representatives,  if  the  sale  is 
on  a  credit. (~) 

According  to  this  rule,  the  mutation,  from  realty  to  personalty, 
can  only  be  finally  consummated  by  a  series  of  separate  and  dis- 
tinct acts  :  Jirst,  there  must  be  a  judgment  or  judicial  authority 
given  by  the  court  to  sell ;  secovdiy,  the  commissioners,  or  agents 
employed  to  make  the  sale,  must  have  reported  to  the  court,  that 
they  had,  in  pursuance  of  that  authority,  made  a  sale  ;  thirdly,  the 
court  must  have  ratified  the  sale  so  made  and  reported ;  and  lastly, 
the  purchaser  must  have  either  paid  the  purchase  money  or  have 
given  his  bonds  to  secure  the  payment  of  it  to  the  party  entitled. 
When  all  these  acts  have  been  done,  the  judicial  function  of  the 
court,  in  relation  to  the  subject,  has  finally  terminated  ;  and  the 
fund  which  had  been  submitted  to  its  operation  has  been,  thereby, 

(y)  Pow.  Mort.  by  Coven.  9S3;  Bromlej'  v.  Goodere,  1  Atk.  75  ;  Flanagan  v.  Fla- 
nagan, cited  1  Bro.  C.  C.  500 ;  Banks  v.  Scott,  5  Mad.  493 ;  Mackubin  v.  Brown, 
ante  410;  Wright  v.  Rose,  2  Sim.  &  Stu.  323;  Femvick  v.  Laughlin,  post  474. 
(2)  The  State  v.  Krebs,  6  H.  &.  J.  36. 


454  JONES  r.  JONES. 

changed  from  one  kind  of  proj^erty  into   another ;  from  real  into 
personal  estate. 

With  regard  to  the  mutation  of  the  estate,  the  rule  in  equity 
seems  to  be  different ;  or,  at  least,  it  appears  to  have  been  held, 
that  all  four  of  those  several  acts  are  not  essentially  necessary  to 
produce  a  conversion  of  the  property  from  realty  to  personalty. 
For,  where,  on  a  bill  in  chancery  to  obtain  a  partition  of  the  real 
estate  of  an  intestate  among  his  heirs,  one  of  whom  was  then  a 
feme  covert ;  on  the  lands  being  deemed  incapable  of  division,  a 
decree  was  passed  ordering  them  to  be  sold ;  and  the  trustee, 
appointed  for  that  purpose,  reported,  that  he  had  sold  them  accord- 
ingly ;  which  sale  was  finally  ratified  by  the  court.  After  which, 
and  before  the  purchase  money  had  been  paid,  and  before  any  order 
had  been  passed  by  the  court,  directing  the  manner  in  which  the 
purchase  money  should  be  distributed,  the  feme  covert  died ;  and 
then  her  husband  died.  Upon  which  the  interest  of  they^me  covert, 
at  the  time  of  her  death,  was  viewed  in  the  nature  of  an  equitable 
chose  in  action ;  her  individual  legal  estate  in  the  realty  having 
been  changed  by  the  decree,  the  sale,  and  the  ratification  thereof, 
into  a  floating  undivided  interest  of  that  kind. 

Hence  it  appears,  that,  in  equity,  the  mutation  is  effected  by  the 
mere  preliminary  operations  of  the  court,  or  by  those  judicial 
proceedings  which  are  always  had  as  preparatory  only  to  that  par- 
tition of  the  property  among  the  parties  which  is  the  sole  object  of 
the  suit.  And  it  was  further  held,  that  although  the  husband  was 
a  party  to  the  suit,  yet  he  could  not  be  considered  as  having,  by 
those  proceedings  alone,  reduced  this  interest  of  his  wife's  into 
possession ;  because  tlie  proceeding  only  directs  a  sale  of  the  pro- 
perty, and  the  proceeds  to  be  brought  into  court.  It  professes  not 
to  ascertain  the  rights  of  the  respective  claimants  ;  it  makes  no 
distribution,  it  awards  no  payment,  either  immediately  or  contin- 
gently, to  husband  and  wife,  or  either  of  them  ;  no  such  decree  has 
passed  as  is  equivalent  to  a  judgment  at  law,  which  would  vest  the 
chose  of  the  wife  absolutely  in  the  surviving  husband ;  nor  has  any 
order  been  passed  by  the  court  directing  the  proceeds  to  be  paid  to 
the  husband  and  wife,  or  to  the  husband  alone.  And  therefore, 
although  the  real  estate  of  the  wife  had  been  converted  into  an 
interest  in  the  nature  of  an  equitable  chose  in  action,  that  is,  into 
mere  personal  property  of  that  description  ;  yet,  as  the  husband  had 
not  reduced  it  into  possession  during  his  lifetime,  it  passed  to  the 


JONES  V.  JONES.  455 

personal  representatives  of  the  IdLteJems  covert,  not  to  those  of  her 
deceased  husband. («) 

A  married  woman,  who  is  entitled  to  an  undivided  part  of  a  real 
estate,  cannot  be,  in  any  way,  deprived  of  it  without  her  express 
consent ;  which,  by  the  common  law,  can  only  be  obtained  by  a 
Jine,  or,  under  the  acts  of  assembly,  by  her  privy  examination 
and  acknowledgment  of  a  deed  conveying  it  to  another.  From 
necessity',  and  for  the  purpose  of  effecting  a  partition  of  a  real 
estate,  which  is  incapable  of  division  withput  loss,  it  may  be  sold 
and  converted  into  personalty.  But  a  change  of  the  nature  of 
property,  in  order  to  attain  a  particular  object,  should  not  divest  tho 
owner  of  his  right  to  it,  to  any  extent  whatever.  The  conversion 
of  a  real  estate  into  personalty,  for  the  purpose  of  thereby  awarding 
to  a  feme  covert,  more  fully  and  exactly  than  could  otherwise  be 
done,  her  due  share  of  it,  ought  not  to  be  allowed  to  operate  so  as 
to  impair  her  right  to  it,  or  to  lessen  her  absolute  control  over  it  in 
any  way  whatever.  When  a  married  woman  petitions  for,  or  con- 
sents to  have  a  partition  made  of  a  real  estate,  in  which  she  is 
entitled  to  an  undivided  interest,  and  acquiesces  in  a  sale  of  it,  for 
the  purpose  of  making  a  just  division  of  its  value,  because  of  its 
being  difficult,  or  impracticable  to  make  a  correct  partition  of  it  in 
kind  without  mutual  loss,  she  ought  not  to  be  considered  as  har 
ing,  thereby,  virtually  agreed  to  have  her  own  absolute  right  to  het 
share  transferred  to  another,  or  in  any  way  lessened  or  impaired. 
For  if  that  were  the  effect  of  the  judicial  proceeding,  then  the  in- 
evitable consequences  of  a  suit  for  a  partition,  in  all  such  cases, 
would  be,  that  the  suit  itself  would  operate  as  a  partial  or  total 
extinguishment  of  the  rights  and  interest  of  the  yeme  covert. 
Because,  if,  by  a  sale,  for  the  purpose  of  effecting  a  partition, 
the  wife's  share  is  thereby  converted  into  personalty,  which 
her  husband  may,  at  pleasure  and  without  her  consent,  reduce 
into  possession,  the  result  will  be,  that  she  may  thus  be  divested 
of  her  real  estate  without  her  express  consent ;  and  even  if 
the  husband  were  allowed  so  to  take  the  wife's  share  as  per- 
sonalty, subject  to  what  is  called  the  wife's  equity,  then  she 
could  only  have  a  portion  of  it  settled  upon  her ;  whereas  the 
whole  of  the  proceeds  of  sale  awarded  to  her  are,  in  truth,  but 
the  substitute  for  her  realty ;  and  therefore,  to  do  her  justice^  the 

(a)   Leadenham  r.  Nicholson,  1  H.  &G.  275;  Hammond  v.  Stier,  2  G.  &  J.  81  ; 
Caryi).  Taylor,  2  Vera.  3C2. 


456  JONES  V.  JONES. 

whole   tihoulJ  be  settled  upon  her  as  land  ;    unless   she  should 

expressly  consent  that  the  proceeds  of  sale  should  be  otherwise 
disposed  of.(«) 


(a)  Spurrier  v.  Spurrier,  post  000 ;  Iglehart  v.  Armiger,  post  000. 

Wells  D.  Rolosox. — Tliis  bill,  which  was  filed  on  the  12th  of  June  1815,  states, 
tliat  the  late  John  Wells,  by  his  last  will,  among  other  things,  devised  certain  real 
estate  to  his  children,  as  tenants  in  common ;  one  of  wliom,  Margaret,  Avas  to  hold 
for  life  witli  remainder  over  to  her  children  in  fee ;  that  Margaret  had  several  children 
who  are  infants,  and  was  then  the  wife  of  the  defendant  Richard  Roloson;  that  the 
land  was  incapable  of  division  ;  and  that  a  division  could  notie  obtained  because  of 
the  infancy  of  JNIargaret's  children.  Prayer  that  the  estate  might  be  sold  and  the 
proceeds  dixided.     The  defendants  answered,  admitting  the  facts  as  stated. 

20th  Ji'l'j,  1S16. — Kilty,  Chancellor. — Let  a  commission  be  issued  under  the  act 
to  direct  descents  to  persons  to  be  named  by  the  complainant. 


After  which  the  case  standing  ready  for  hearing,  and  being  submitted,  the  bill, 
answer,  exhibits,  and  return  of  the  commissioners,  together  with  all  other  proceed- 
ings having  been  by  the  Chancellor  read  and  considered ;  it  was  on  the  31st  of 
December  1816  decreed,  that  the  real  estate  be  sold,  and  that  William  Gwynn  be  the 
trustee  for  that  purpose,  &.c.  A  sale  was  accordingly  made  and  confii-med.  On  the 
25th  of  August,  1817,  the  au-ditor  reported  a  distribution  of  the  proceeds  of  sale  after 
deducting  costs,  &c. ;  in  which  he  says,  that  he  had  divided  the  balance  among  the 
deceased's  children  to  be  paid  agreeably  to  his  wiU, — that  is,  among  others,  to  Caleb 
Davis  and  Mary  his  wife,  one-sixth  of  the  balance  $963  86,  and  to  Richard  Roloson 
and  Margaret  his  wife  during  her  life,  and  thereafter  to  her  children  or  their  issue 
according  to  the  deceased's  will,  $963  86. 

2Sd  September,  1817. — Kilty,  Chancellor. — Ordered,  that  the  above  statement  as 
reported  be  confirmed,  and  the  proceeds  applied  accordingly,  with  interest  on  the 
commission  and  dividends,  in  proportion  as  it  has  been  or  may  be  received. 


After  which  the  trustee,  referring  to  this  last  order,  prayed,  that  he  might  be 
authorized  to  pay  the  dividend  awarded  to  Margaret  and  her  children  to  the  register, 
that  tlie  same  might  be  applied,  invested  or  paid  over  as  to  the  court  might  appear 
just  and  most  conformable  to  the  will  of  the  said  John  Wells. 

30th  September,  1817.— Kilty,  Cha7icellor.— The  trustee  is  authorized  to  pay  into 
this  court,  to  the  register  thereof,  the  part  of  the  proceeds  of  the  sale  mentioned  in  the 
above  petition,  to  be  deposited  in  the  usual  manner  subject  to  the  order  of  tlie  court. 


Which  dividend  having  been  brought  into  court  accordingly,  Margaret  Roloson 
set  forth,  that  she  was  willing  and  able  to  give  good  securitj- ;  and  thereupon  prayed, 
that  the  dividend  awarded  to  her  might  be  paid  over. 

28/^  October,  1817. — Kilty,  Chancellor. — On  the  application  of  Margaret  Roloson 
the  report  of  the  auditor  and  the  will  of  John  Wells  have  been  considered.  A  bond 
must  be  executed  by  Richard  Roloson  for  the  payment  of  the  sum,  to  wit,  $963  86 
to  the  children  of  Margaret  Roloson  or  their  issue  after  her  death  according  to  the 
will  of  John  Wells.     The  penalty  of  the  bond  to  be  2000  dollars. 


Mar)'  Davis  by  her  petition  states,  that  her  husband  Caleb  died  on  the  14th  of 
June  1817,  without  having  received  any  part  of  the  proceeds  of  sale;  that  she  had 
been  advised  by  the  trustee  to  take  out  letters  of  administration  on  the  estate  of  her 


JONES  V.  JONES.  45Y 

It  may  well  be  doubled,  whether  it  is  within  the  constitutional 
competency  of  either  the  legislative,  or  judicial  department  of  our 

late  husband,  or  to  obtain  an  order  from  this  court  for  the  share  awarded  to  her  and 
her  husband  by  the  order  of  the  23d  of  September  1817 ;  but  that  she  conceived  her- 
self entitled,  in  her  own  right,  to  the  whole  share  as  one  of  the  children  of  the  testator. 
IWi  February,  1818. — Kilty,  Chancellor. — This  petition  of  Mary  Davis  has  been 
considered ;  and  tiie  trustee  is  thereupon  authorized  and  directed  to  pay  the  sum 
allotted  to  Caleb  Davis  and  Mary  his  wife  to  the  said  Maiy  Davis,  with  interest  as 
prescribed  in  the  order  of  September  23d,  1817. 


Roloson  and  wife  by  their  petition  alleged,  that  tlieir  share  had  been,  as  thev  were 
informed,  paid  by  the  trustee  to  the  register,  who  they  prayed,  might  be  ordered  to 
pay  it  over  to  them.  To  which  petition  was  subjoined  an  order  signed  by  JMargaret, 
directing  it  to  be  paid  over  to  Richard  her  husband. 

21s/  February,  1318. — Kilty,  Chancellor. — The  parties  should  have  known,  that 
the  money  is  deposited  in  bank  and  cannot  be  drawn  by  the  register  without  the 
order  of  the  court.  If  the  petitioners  elect  to  take  a  part  of  the  money,  as  an  equi- 
valent to  the  use  of  the  whole  for  life,  it  must  be  so  stated ;  and  witnessed,  as  to 
Margaret  Roloson.  The  present  petition  and  the  order  of  Margaret  Roloson  are  in 
general  terms  for  the  dividend,  and  would  not  justify  the  payment  of  any  part  of  the 
money.     The  allowance  will  be  tliree-sevenths  of  the  whole  sum. 


Roloson  and  wife  by  their  petition  stated,  that  they  elected  to  take  a  part  absolutely 
instead  of  the  whole  for  life.  To  which  petition  was  subjoined  a  draft  by  Mar"-ai-et, 
in  favour  of  Richard,  which  was  witnessed  by  T.  W.  Griffith. 

24/A  February,  1818. — Kilty,  Chancellor. — On  the  above  application  it  is  ordered, 
that  the  said  R.  and  M.  Roloson  be  allowed  three-sevenths  of  the  sum  allotted  to 
them  for  life  ;  which,  out  of  $963  86,  amounts  to  $412  8|,  leaving  a  fraction  of  one 
fourth ;  and  a  check  will  be  ordered  for  that  sum  ;  and  $74  93i  to  R.  Roloson  as 
guardian  of  the  children  ;  making  together  the  sum  of  $487  7  paid  in  by  the  trustee, 
and  deposited.  The  further  sums  to  be  received  applicable  to  the  said  allowance  may 
be  paid  to  the  said  R.  Roloson  as  guardian  to  tiie  children  by  the  tiustee  when  received 
or  bronght  into  court,  with  interest  according  to  the  order  on  the  auditor's  report. 


David  Wilson  and  Joseph  Read  set  forth  that  they  were  the  sureties  of  Richard 
Roloson,  that  he  had  deceived  them ;  and  that  they  did  not  consider  themselves  sale  ■ 
that  they  had  made  application  to  the  Orphans  Court  to  be  discharged,  and  tliey 
thereupon  prayed  that  the  dividends  awarded  to  the  infants  might  not  be  paid  to 
Roloson. 

Ith  Jlpril,  1818.— Kilty,  Chancellor.— In  consequence  of  the  application  of  D. 
Wilson  and  of  J.  Read,  the  trustee  is  directed  to  pay  any  further  sum,  that  may  be 
received,  applicable  to  the  allowance  to  R.  Roloson  and  wife  and  her  children,  into 
court  for  further  order.   A  copy  of  this  application  and  order  to  be  sent  to  the  trustee. 


Adam  Waltemeyer  and  Rachel  his  wife  by  their  petition  stated,  that  she  wa.s  one 
of  the  children  of  Margaret  Roloson ;  and  as  such  was  one  of  those  who,  under  the 
will  of  John  Wells,  was  entitled  to  take  after  the  death  of  Margaret.  Upon  which 
they  prayed,  that  the  one-sixth  of  the  proceeds,  to  which  Margaret  was  entitled  for 
life,  might  be  so  invested  as  that  the  interest  or  profits  only  should  be  paid  to  her 
during  her  life,  securing  the  whole  to  the  use  of  her  children  after  her  death. 

25^1  July,  1818.— Kilty,  Chancellor. —On  considering  the  proceedings  in  this  sul^ 

58 


458  JONES  v.  JONES. 

government  to  pass  any  law,  or  to  do  any  act  which  shall  result  in 
thus  divesting  any  one  of  his  property,  or  impairing  his  rights 
without  his  express  consent.  It  is  a  general  rule  of  law,  from 
which  no  court  of  justice  should  permit  itself  to  deviate,  that  no 
citizen  can,  in  any  way,  be  deprived  of  his  property  without  his  con- 
sent ;  or  otherwise  than  as  a  punishment ;  or  as  a  means  of  compelling 
him  to  pay  his  debts,  and  comply  with  his  contracts.  If,  being  com- 
petent to  consent,  he  refuses  to  allow  his  property  to  be  applied  to  a 
public  purpose,  it  cannot,  even  in  that  case,  be  taken  from  him  with- 
out an  adequate  compensation.  But,  if  the  owner  be  incompetent  to 
contract,  or  to  manage  his  own  affairs,  a  court  of  justice  never 
undertakes,  even  to  alter  the  nature  of  his  property  from  realty  to 
personalty,  or  the  reverse ;  except  from  necessity  and  for  his  obvi- 
ous advantage. (6)  So  too,  although  this  court  has  been  expressly 
authorized,  by  various  acts  of  assembly,  for  the  benefit  of  an 
infant,  or  person  non  compos  mentis,  to  have  his  real  estate  sold 
and  converted  into  personalty ;  yet,  as  he  can  give  no  consent  to 
any  such  conversion,  it  is  but  just,  that  his  rights  and  interests 
should  be  no  further  deranged  or  impaired  than  may  be  indis- 
pensably necessary ;  therefore,  it  has  been  expressly  declared, 
that  the  proceeds  of  the  sale  of  the  real  estate  shall,  in  such  cases, 
pass  as  realty  to  the  heirs  of  such  infant  or  person  non  compos 
mentis,  as  if  no  such  sale  had  been  made.(c) 

An  obvious  consequence  of  this  mutation  of  a  wife's  real  estate 
into  personalty,  is,  that  it  casts  over  the  property  thus  changed,  by 
w^hat  seems  to  be  considered  as  the  tacit  consent  or  acquiescence 


and  particularly  the  order  of  February  24th,  181S,  allowing  to  R.  and  M.  Roloson  a 
certain  portion  of  the  sum  reported  instead  of  the  use  of  the  whole  sum  for  life ;  the 
proportion  of  A.  Waltemeyer  of  the  residue  including  interest  paid  in  is  found  to  be 
^142  56,  for  which  sum  a  check  in  his  favour  will  be  ordered. 


Margaret  Roloson  by  her  petition  stated,  that  conceiving  herself  entitled,  during 
her  life,  to  the  interest  arising  from  one-sixth  of  the  purchase  money  received  from 
the  sale  of  the  property  in  the  proceedings  mentioned,  or  such  part  thereof  as  now 
remained  in  the  chancery  office,  she  prayed,  that  the  same  might  be  invested  in 
some  way  for  her  exclusive  use  and  benefit ;  so  that  she  might  during  her  life  receive 
the  interest  thereof,  notwithstanding  her  coverture,  for  her  own  separate  use ;  and 
not  subject  to  the  control  of  her  husband,  as  she  will  receive  no  benefit  whatever 
from  it  if  paid  to  him. 

24//t  Fcbrvan/,  1S20.— Kilty,  Chancellor.— The  petitioner  is  referred  to  the  order 
of  the  24th  of  February  181S,  on  her  petition  with  her  husband,  by  which  a  certain 
sum  was  allowed  to  him  in  lieu  of  her  interest. 

(t)  1  Mad.  Chan.  339;  High.  Lun.  60,  69.— (c)  1800,  ch.  C7,  s.  5  ;  1816,  ch. 
154,  s.  9 ;  1828,  ch.  26,  s.  3  ;  1829,  ch.  222. 


JONES  V.  JONES.  459 

of  the  wife,  (but  certainly  without  her  privy  examination  or  express 
assent,)  all  the  law  which  regulates  personal  property  belonging  to 
the  wife.  As  land,  her  husband  could  have  only  a  limited  and 
qualified  right  to  and  enjoyment  of  it ;  she  could  not  be  deprived 
of  it  without  her  solemn,  free,  and  express  consent,  which  if  not 
given,  it  would  after  her  death  pass  to  hei'  heirs  ;  but  as  personalty, 
on  being  reduced  into  possession  by  the  husband,  it  becomes  abso- 
lutely his  property,  and  may  be  wasted  or  disposed  of  by  him 
without  any  control  from  her.(rf)  But  subject  to  these  principles 
in  regard  to  the  mutation  of  tlie  property  itself,  the  Court  of  Appeals 
has  distinctly  recognised  the  existence  of  that  right  of  a  Jeme 
covert  in  regard  to  her  property  which  her  husband  may  ask  a  court 
of  equity  to  put  into  his  hands,  called  "  the  wi/'e^s  equity  ;''^  and 
w^hich  can  only  be  secured  to  her  by  a  court  of  equity. (e)  In  rela- 
tion to  which,  it  has  been  laid  down,  that  where  a  husband  comes 
into  equity  to  obtain  any  of  his  wife's  choses  in  action.,  the  court 
will  not  receive  her  consent  to  bar  her  equity,  until  after  the  amount 
due  to  her  has  been  ascertained ;  for,  though  she  may  not  think 
$500  the  proper  subject  of  a  settlement,  she  may  think  differently 
of  $5,000.(/) 

But  although,  in  general,  choses  in  action  are  not  subject  to  be 
taken  in  execution,  either  at  law,  or  in  equity ;  yet  this  interest, 
which  has  been  held  to  be  in  the  nature  of  an  equitable  chose  in 
action,  will  be  so  far  considered  as  parcel  of  the  realty  as  to  be 
subject  to  be  intercepted  by  an  order  of  this  court  for  the  benefit 
of  the  creditors  of  the  deceased  debtor  where  his  personalty  has 
been  exhausted,  or  where  the  heir  to  whom  it  has  been  aw^arded  is 
the  debtor  and  is  beyond  the  jurisdiction  of  the  State. (o-) 

The  rules  thus  laid  down  upon  this  subject  must  however,  as 
it  would  seem,  be  received  with  some  qualification.  The  six 
heirs  of  an  intestate  instituted  proceedings  at  law^  to  have  the 
real  estate,  which  they  claimed  by  descent,  divided  among 
them ;  on  the  commissioners  having  made  return  of  its  value, 
and  that  it  would  not  admit  of  a  division  without  loss ;  one 
of  them  elected  to  take  the  whole,  at  the  valuation.  After  which, 
the  elector  having  failed  to  pay  the  valuation,  one  of  the  heirs, 
who  had  not  been  satisfied,  brought  an  ejectment,  for  his  one  undi- 

(d)  Chaplin  V.  Chaplin,  3  P.  Will.  245.— Ce)  The  State  r.  Krebs,  6  H.  &  J.  37. 
(/)  Jernegan  v.  Baxter,  6  Mad.  32.— (g)  Baltzell  v.  Foss,  1  H.  &  G.  504;"McCaii- 
thy  V.  Goold,  1  Ball  &  B.  3S9. 


460  JONES  V.  JONES. 

vided  sixth  part  of  the  land  descended,  against  the  elector.  Upon 
which  it  was  held,  that  a  legal  estate  in  fee,  in  the  land  elected  to 
be  taken,  cannot  vest  in  the  party  electing  to  take,  and  pay  the 
value,  without  his  actually  paying  the  persons  entitled  their  just 
proportions  of  the  value  in  money,  or  giving  bonds  to  them  for  the 
same  agreeably  to  the  act  of  assembly. (A)  Whence  it  would  seem, 
that  although  the  elector  may  be  regarded  as  a  purchaser ;  yet,  by 
his  election  alone,  the  estate  is  not  thereby  changed  from  realty  to 
personalty,  or  froni  an  undivided  estate  into  an  estate  in  severalty, 
until  the  value,  in  money  or  bond,  has  been  actually  paid  or 
given,  although  the  judicial  proceedings  under  which  the  election 
had  been  made  may  have  been,  long  before,  finally  terminated. (?') 

In  the  case  now  under  consideration  the  court  is  informed,  by 
the  bill,  that  the  surplus  of  the  proceeds  of  the  sale  of  the  real 
estate  of  the  late  Jesse  Jones,  yet  remains  in  the  hands  of  the 
sheriff,  who  made  the  sale,  in  obedience  to  a  writ  oi  fieri  facias, 
which  emanated  from  the  Court  of  Appeals  of  the  Eastern  Shore ; 
and  further,  that  there  has  been  no  administrator  appointed  to  take 
charge  of  the  personal  estate  of  the  intestate  Jesse  Jones. 

I  feel  perfectly  satisfied,  that  the  surplus  in  the  hands  of  the  late 
sheriff,  who  is  now  here  as  a  defendant,  must  be  regarded  as  per- 
sonalty ;  and  as  such  belongs  not  to  the  heirs,  but  to  the  personal 
representative  of  Jesse  Jones.  But  there  is  no  such  person  here  as 
a  party  to  this  suit ;  and,  v/ithout  such  a  party,  I  hold  it  to  be 
impracticable,  by  any  decree  of  this  court,  to  affect  this  surplus  ; 
which,  as  personalty,  can  only  be  called  for  from  the  hands  of  the 
personal  representative  of  the  intestate  to  whom  it  rightfully  and 
exclusively  belongs.  For,  although  creditors  may  be  allowed  to 
proceed  against  the  heirs  alone,  in  respect  to  the  real  assets  de- 
scended to  them,  where  there  is  no  administrator,  or  the  personalty 
has  been  altogether  exhausted ;  yet  they  certainly  cannot  be 
allowed,  in  this  way,  to  obtain  satisfaction  of  their  claims  from  a 
merely  personal  fund,  to  which  they  direct  the  attention  of  the 
court,  without  making  the  administrator,  who  alone  can  be  entitled 
to  such  fund,  a  party  to  the  suit. 

Supposing  however,  that  an  administrator  of  the  late  Jesse  Jones 
was  here  as  a  party  to  this  suit ;  even  then,  this  defendant  Brown, 
the  late  -sheriff,  as  regards  his  possession  of  this  surplus,  must  be 

(A)  1802,  ch.  94 ;  1S20,  ch.  191,  s.  20,  21,  &  22 ;  Jarrett  v.  Coolcy,  6  H.  8c  J.  25S. 
(/)  Ridgely  v.  Iglchart,  post. 


JONES  V.  JONES.  46L 

considered  as  an  officer  of  the  Court  of  Appeals.  But  can  the 
Chancellor  order  money,  which  has  been  legally  placed  in  the 
hands  of  an  officer  of  the  Court  of  Appeals,  subject  to  their  con- 
trol, to  be  brought  into  this  court,  to  be  disposed  of  here  as  may 
be  deemed  right,  among  the  parties  to  this  suit  ?  This  court  might 
order  an  administrator,  if  there  was  such  a  person  here  as  a  party 
to  this  suit,  to  move  the  Court  of  Appeals  to  direct  their  officer, 
this  sheriff,  to  pay  this  Surplus  to  him  the  administrator.  But  the 
Chancellor  can  give  no  such  direction  to  this  sheriff;  because  in 
Undertaking  to  control  an  officer  of  the  Court  of  Appeals  as  to  any 
disposition  of  money  placed  in  his  hands  by  their  authority,  the 
Chancellor  would  thus  bring  this  court  into  direct  conflict  with  the 
jurisdiction  of  that  tribunal,  which  certainly  ought  not  to  be  done 
in  any  manner  or  under  any  circumstances  whatever.  Money  in 
the  hands  of  a  sheriff,  or  of  a  third  person,  cannot  be  taken  under 
a  fieri  facias  ;  and  the  correctness  of  this  position  generally  is 
recognised  by  the  attachment  act, (J)  which  gives  what  is  called  a 
judicial  attachment  as  against  third  persons.  But  even  that  pro- 
cess cannot  be  levied  upon  money  which  had  been  made,  and 
brought  into  the  hands  of  a  sheriff  by  virtue  of  a  writ  oi  fieri 
facias ;  because  no  third  person  or  other  court  can  be  allowed  to 
interfere  with  the  execution  of  his  duty  according  to  the  command 
of  the  process  of  that  court  under  whose  authority  he  was  acting. (/f) 
Hence  it  is  clear,  that  this  sheriff  Brown  has  been  improperly  made 
a  party  to  this  suit.  . 

Whereupon  it  is  ordered,  that  this  case  stand  over,  with  leave  to 
amend  and  to  make  proper  parties. 


Afterwards  on  the  6th  of  Jtme  1828,  the  plaintiffs  filed  in  this 
case  the  following  judgment  or  direction  of  the  Court  of  Appeals. 

"  Court  of  Appeals  for  the  Eastern  Shore  of  Maryland,  June 
term  1828. — Ordered  by  the  court,  that  Edward  Brown,  late  sheriff 
of  Kent  county,  pay  to  such  trustee  as  the  Chancellor  of  Maryland 
shall  appoint,  the  sum  of  fourteen  hundred  and  fifty-one  dollars 
and  thirty-eight  cents,  which  sum  of  money  the  said  Edioard 
Brown  as  sheriff  aforesaid,  in  his  return  upon  a  writ  o^  fieri  facias 
issued  from  this  court  at  the  suit  of  Thomas  Dawson  against  Jesse 

(j)  1715,  ch.  40,  3.  7  ;  Parke's  His.  Co.  Chan.  274.— (/.-)  Turner  v.  Fendall,  1  Cran. 
133 ;  Armistead  v.  Philpot,  Doug.  231  ;  Willows  v.  Ball,  2  New  Rep.  376-;  Fieldhouse 
V.  Croft,  4  East,  510  ;  Knight  y.  Cridd]e,9  East,  48  ;  Stratford  v.  Twynam,  Jac.  Rep. 
418;  1S31,  ch.  321. 


462  JONES  r.  JONES. 

Jones,  states  to  have  remained  in  his  hands  after  paying  and  satis- 
fying the  debt,  damages,  costs,  and  charges  due  upon  the  said 
fieri  facias,  and  the  taxes  and  fees  due  to  him  the  said  Edioard 
Brown  as  late  sheriff  and  collector  of  Kent  county.  The  said  sum 
of  money  being  part  of  the  real  estate  of  the  said  Jesse  Jones 
deceased.  The  Chancellor  Avill  distribute  and  dispose  of  the  same 
as  he  shall  deem  equitable  and  proper." 


Upon  all  which  this  case  was  again  brought  before  the  court  and 
submitted  without  argument. 

9th  June,  1828. — Bland,  Chancellor. — Decreed,  that  in  obedi- 
ence to  the  order  of  the  Court  of  Appeals  for  the  Eastern  Shore 
of  Maryland,  filed  in  this  case  on  the  sixth  instant,  the  said  sum 
of  $1451  38,  mentioned  in  the  bill  of  complaint,  be  paid  by  the 
said  Edward  Brown  to  John  B.  Eccleston,  the  trustee  herein  after 
named ;  which  money  having  been  declared  by  the  said  order  to  be 
a  part  of  the  real  estate  of  Jesse  Jones  deceased,  when  received  by 
the  said  trustee  he  shall  bring  into  this  court  to  be  applied  under 
the  Chancellor's  direction,  after  deducting  the  costs  of  this  suit, 
and  such  commission  to  the  trustee  as  the  Chancellor  shall  think 
proper  to  allow  in  consideration  of  the  skill,  attention,  and  fidelity 
wherewith  he  shall  appear  to  have  discharged  his  trust;  that 
before  the  said  trustee  shall  be  entitled  to  receive  the  said  sum  of 
money,  he  shall  file  with  the  register  of  this  court  the  bond  herein 
after  mentioned  ;  that  provided  the  said  sum  of  money  shall  be 
paid  by  the  said  Edward  Brown  on  or  before  the  first  day  of  January 
next,  no  interest  thereon  shall  be  demanded ;  but  if  not  then  paid 
he  shall  from  that  time  be  required  to  pay  interest  on  the  same. 

It  is  further  decreed,  that  the  lands  in  the  proceedings  mentioned 
be  sold,  that  John  B.  Eccleston  be  appointed  trustee  to  make  the 
sale,  &c.  &c. ;  and  that  the  trustee  at  the  time  of  advertising  the 
said  property  for  sale,  give  notice  to  the  creditors  of  the  said  Jesse 
Jones  to  file  the  vouchers  of  their  claims  in  the  chancery  office, 
wuthin  four  months  from  the  day  of  sale. 


After  which  the  trustee  made  sale  of  th^  real  estate,  which  was 
ratified  on  the  13th  of  April  1829,  and  having  received  the  surplus 
from  the  defendant  Brown,  and  given  notice  to  the  creditors,  who 
came  in ;  the  whole  estate  was  finally  distributed ;  after  allowing 
to  the  two  widows  each  a  portion  of  the  proceeds  of  the  sale  of 
the  realty  sold  by  the  trustee  in  lieu  of  their  dower. 


DORSEY  V.  HAMMOND  453 


DORSEY  V.  HAMMOND. 

The  auditor  is  a  ministerial  officer  of  the  court.  The  general  character  and  nature 
of  his  duties.  His  fees,  being  a  part  of  the  costs,  the  payment  of  them  may  be 
enforced,  in  a  summary  way,  like  costs  Statements  may  be  made  by  the  auditor 
for  the  parties  with  or  without  the  directions  of  the  Chancellor. 

The  mode  in  which  creditors  are  made  to  contribute  to  a  creditors'  suit. 

In  a  creditors'  suit  the  proceeds  of  the  realtj'  are  to  be  distributed  in  the  same  order 
among  creditors  in  which  the  personally'  is  to  be  distributed  among  those  only 
whose  claims  have  been  so  avouched  as  to  authorize  the  Oqihans  Coui-t  to  allow 
of  their  payment. 

A  claim  may  be  contested  so  as  to  put  the  claimant  to  full  proof;  in  wliich  case  if 
it  be  not  legally  established  it  must  be  rejected. 

A  judgment  against  an  executor  or  administrator  is  no  evidence  against  the  heirs ; 
against  whom  the  claim  must  be  authenticated  as  if  no  such  judgment  existed. 

An  absolute  judgment  against  an  executor  or  administrator  is  conclusive  evidence 
against  him  of  a  sufficiency  of  personal  assets  in  his  hands. 

After  a  claim  has  been  decided  upon,  it  cannot  be  again  brought  before  the  court  in 
a  different  shape ;  except  under  such  circumstances  as  would  form  a  sufficient 
foundation  for  a  bill  of  review,  or  a  re-hearing. 

This  was  a  creditors'  bill  filed  on  the  13th  of  December,  1826, 
by  John  W.  Dorsey  against  Rezin  Hammond.,  the  executor,  and 
Denton  Hammond,  Matthias  Hammond,  and  Caroline  B.  Hammond., 
infants  and  devisees  of  the  ]dXe  Matthias  Hammond. 

The  biU  states,  that  the  deceased  being  indebted  to  the  plaintiff, 
he  had  brought  suit  and  recovered  judgment  against  his  executor 
the  defendant  Rezin  Hammond,  from  whom  he,  the  plaintiff,  had 
received  payments,  leaving  a  balance  due  him  of  $.3182  49  ;  that 
the  testator  had  died  seized  of  a  larjje  real  estate  which  he  had 
devised  to  the  infant  defendants  ;  and,  that  the  whole  of  his  per- 
sonal estate  had  been  exhausted  and  disposed  of  in  payment  of 
his  debts.  Whereupon  the  plaintiff  prayed,  that  the  real  estate 
might  be  sold  to  satisfy  the  balance  due  him,  and  such  other  of 
the  creditors  of  the  deceased  as  should  come  in  under  this  suit. 
The  defendants  by  their  answers  admitted  the  facts  set  forth  in  the 
bill ;  and  on  tlie  19th  of  ]March  1827  it  was  decreed,  that  the  real 
estate  be  sold,  and  that  notice  be  given  to  the  creditors  of  the 
deceased  to  file  their  claims  in  the  chancery  office  within  four 
months  after  the  day  of  sale. 

After  which,  on  the  representation  of  tlie  trustee,  that  there  was 
a  large  body  of  land,  embraced  by  the  decree,  which  it  was  thought 
most  advisable  to  have  laid  off  into  lots  and  offered  for  sale  in 
parcels,  it  was,  on  the  9th  of  May  1827,  ordered  that  the  surveyor 


464  DORSEY  v.  HAMMOIVD. 

lay  out  the  lands  accordingly  and  make  return  of  a  plot  thereof. 
And  the  trustee  having  reported,  that  he  had  made  sale  of  the  estate, 
as  thus  laid  off  into  lots,  and  had  given  notice  to  the  creditors  of 
the  deceased  to  file  their  claims  as  required  by  the  decree,  the 
sales  were  finally  ratified,  no  cause  having  been  shewn  to  the  con- 
trary after  the  usual  order  of  publication. 

On  the  29th  of  February  1828,  the  auditor  reported,  that  he  had 
examined  the  proceedings  and  stated  all  the  claims  exhibited 
asfainst  the  estate  of  the  deceased,  and  an  account  between  the 
estate  and  the  trustee,  in  which  the  proceeds  of  sale  were  applied 
to  the  payment  of  the  trustee's  commission  and  expenses,  costs  of 
suit  and  survey,  county  taxes,  and  dividends  on  all  the  claims 
stated.  But  that  claim  No.  3  was  not  proved  as  required  by  the 
act  of  1798,  ch.  101  ;  that  claim  No.  4  was  against  the  deceased  as 
surety,  and  that  the  insolvency  of  the  principal  debtor  was  not 
proved  ;  and  that  absolute  judgments  had  been  recovered  against 
the  executor  by  the  creditors  for  claims  No.  3,  4,  and  5,  which 
judgments  being  conclusive  evidence  of  the  sufficiency  of  the  per- 
sonal assets  to  satisfy  those  claims,  had  destroyed  the  right  of 
those  creditors  to  resort  to  the  real  estate.  On  the  6th  of  March 
following  the  auditor  made  another  report,  in  which  he  says,  that 
he  had  admitted  two  other  claims,  and  had  re-stated  the  account, 
and  had  deducted  the  additional  costs  from  the  dividends  allotted 
to  the  two  newly  admitted  claims. 

22c^  March,  1828. — Bland,  Chancellor. — This  case  having  been 
submitted,  in  relation  to  the  claims  reported  by  the  auditor  as  No. 
3,  4,  and  5,  on  the  remarks  in  writing  of  the  solicitor  of  those 
claimants,  the  matter  has  been  maturely  considered. 

It  has  been  insisted,  that  the  auditor  had  no  right  to  make  such 
objections,  as  those  set  forth  in  his  report,  to  any  claim.  I  do  not 
recollect  ever  to  have  met  with  an  instance  in  which  an  auditor's 
report  has  been  opposed  upon  similar  grounds  before.  I  deem  it 
therefore  proper  to  say  something  upon  this  subject,  not  because  I 
entertain  any  doubt,  or  perceive;  any  difficulty,  but  from  a  wish  that 
the  practice  and  course  of  the  court  should  be  better  understood. 

From  the  nature  of  the  cases  brought  before  this  court  it  is  perfectly 
obvious,  that  calculations,  dividends,  and  statements  of  accounts 
must  often  be  required  to  be  made  for  the  elucidation  of  the  matter, 
or  as  preparatory  to  a  decree,  or  order.  Formerly  such  accounts, 
or  statements  were  most  usually  made  under  a  special  commission 
for  that   purpose,  directed    to    certain    commissioners  who   were 


DORSEY  V.  HAMMOND.  465 

required  to  take  testimony,  to  make  the  necessary  statements  there- 
from, and  to  report  accordingly  to  the  court.  Such  commissions  were 
frequently  executed  at  a  distance  from  the  court,  without  any  help  or 
light  from  the  pleadings,  in  which  the  claims  and  pretensions  of  the 
parties  were  set  forth  ;  and,  without  any  immediate  access  to  the 
Chancellor  for  explanation  of  principles,  in  case  of  any  doubt,  or  dif- 
ficulty with  the  commissioners.  Such  a  mode  of  preparing  and  stating 
accounts  must  often  have  been  attended  with  much  expense  and  incon- 
venience ;  yet  as  it  is  a  mode  of  proceeding  properly  belonging  to  this 
court,  which  has  not  been  in  any  way  expressly  or  virtually  abolished, 
it  may  now  be  resorted  to  in  cases  where  the  books,  documents  and 
proofs  are  at  a  distance,  and  cannot,  without  much  inconvenience,  be 
brought  into  court,  and  lodged  within  reach  of  the  regular  auditor.(a) 

(a)  Clapham  v.  Thompson,  ante,  123;  Rutland  v.  Yates  and  Petty,  MS.,  25tli 
August  17S9. 

BiRCHFiELD  V.  Vanderheydem,  12th  July  1722. — After  a  commission  to  account, 
which  had  been  issued  to  commissioners  at  a  distance  from  the  court,  had  been  returned 
without  any  thing  having  been  done,  the  plaintilF  moved  "  for  another  commission  to 
some  persons  in  Annapolis  to  auditc  the  same  accounts  for  his  more  easy  laying  the  ac- 
counts of  the  deceased  before  them ;"  which  was  granted. —  Ch.  Rec.  Lib.  P.  L.fol,  891. 

DoRSEY  V.  DuLAXY. — This  bill  was  filed,  11th  December  1762,  by  the  plaintiff 
against  the  administrator  of  his  deceased  partner,  for  an  account,  &c.  The  com- 
plainant and  defendant,  by  their  counsel,  consented  and  prayed  that  a  commission 
might  issue  to  some  persons  to  examine  evidences  and  audite  accounts  in  relation  to 
the  said  case :  whereupon  commissioners  were  struck  by  the  counsel  of  the  parties 
in  the  usual  manner,  and  a  commission  issued  accordingl)',  directed  to  the  several 
persons  therein  named  and  appointed,  in  the  words  following : 

Maryland,  Set. — Frederick, absolute  lord  and  proprietary  of  the  province  of  Maryland, 
and  Avalon,  Lord  Baron  of  Baltimore,  &c. :  To  Dr.  John  Stevenson,  Bryan  Philpot  of 
Baltimore  county,  Lancelot  Jaques  and  George  Clark  of  Ann  Arundel  county,  gentle- 
men ;  greeting :  Know  ye,  that  we  have  nominated  and  appointed  you,  or  any  three 
or  two  of  you  to  be  our  commissioners  to  examine  evidence  ;  as  also  to  audite,  state, 
settle  and  adjust  all  accounts  in  a  certain  cause  depending  in  our  High  Court  of  Chan- 
cery, between  Caleb  Dorsey  of  Ann  Arundel  county,  iron  master,  complainant,  and 
Henrietta  Maria  Dulany,  administratrix  dc  bonis  non  of  Edward  Dorsey  csq'r.  of  the 
same  county,  defendant :  We  therefore  require  you  or  any  three  or  two  of  you,  that  at 
such  time  and  place,  as  to  you  or  any  three  or  two  of  you  shall  seem  convenient,  you 
cause  to  come  before  you  or  any  three  or  two  of  you  all  such  evidences  as  shall  be  to 
you,  or  any  three  or  tv»o  of  you  named  or  produced  by  either  the  complainant  or  delind- 
ant ;  and  also  to  state,  audite,  settle,  and  adjust  all  accounts  relating  to  the  inattcr  in 
dispute  that  shall  be  produced  to  you,  or  any  three  or  two  of  you,  by  either  ol'  the  pai  - 
ties,  and  that  you  exomine  them,  and  every  of  tiicm,  on  their  corporal  oaths  to  be  by 
you  administered  on  the  Holy  Evangelists,  in  the  presence  of  the  said  complainint 
and  defendant,  if  (hey,  having  timely  notice  thereof,  think  fit  to  be  ju-escnt,  touching 
their  knowledge  of  any  thing  that  may  relate  to  the  cause  albre.-iaid ;  and  that  you 
reduce  into  writing  such  account  as  shall  be  staled  and  settled  by  you;  and  the  same 
with  the  said  depositions  you  send  together  with  this  our  commission  under  your  or 
any  three  or  two  of  your  hands  and  seals  with  all  convenient  speed  to  us  in  our  High 

59 


466  DORSEY  V.  HAMMOND. 

But  the  Chancellor  has  been  authorized  to  appoint  an  auditor 
during  his  pleasure.  (6)  This  auditor  is  the  calculator  and  accountant 

Court  of  Chancery.  Witness  ourself  at  the  city  of  Annapolis,  this  25th  day  of  May, 
^nno  Domini,  1763.  Reverdy  Ghiselin,  Reg.  Cm:  Can. 

On  the  back  of  the  aforegoins^  commission  was  thus  endorsed,  to  wit. — Baltimore 
county,  October  the  3d,  1763.  Came  the  within  named  John  Stevenson,  Biyan  Phil- 
pot,  Lancelot  Jacques,  and  Corbin  Lee,  before  me  the  subscriber,  one  of  his  lord- 
ship's justices  of  the  peace  for  Baltimore  count}%  and  severally  made  oath  on 
the  Holy  Evangels,  that  they  would  well  and  truly  audite,  and  state  all  such 
accounts  as  should  be  by  the  within  parties  respectively  laid  before  them  pursuant  to 
the  within  commission,  according  to  the  best  of  their  knowledge  and  understanding. 

"  To  his  Excellency  Horatio  Sharpe,  esq'r,  Chancellor  of  Marj'land,  &c. 

"  We  the  commissioners,  within  named,  do  hereby  certify,  that  by  virtue  of  the 
within  commission  to  us  directed  we  did,  after  being  legally  sworn  thereto,  and  after  the 
appointment,  and  due  qualification  of  Mr.  Daniel  Chamier  as  our  clerk  and  assistant 
therein,  meet  at  the  house  of  Mr.  Daniel  Barnet  in  Baltimore  town,  on  the  third  day 
of  October  seventeen  hundred  and  sixty -three,  in  the  presence  of  Caleb  Dorsey  the 
within  mentioned  complainant,  and  Benjamin  Beal  of  Annapolis,  on  the  part  and  behalf 
of  the  within  mentioned  defendant,  in  order  to  adjust,  audit,  and  settle  all  accounts  re- 
lating to  the  matters  in  dispute  between  the  said  parties,  and  did  there  and  then  proceed 
to  settle,  adjust,  and  audite,  and  did  there  and  then  settle,  audite  and  adjust  in  the  pre- 
sence of  the  said  complainant,  and  the  said  Benjamin  Beal,  after  hearing  all  the  allega- 
tions of  the  said  complainant,  and  the  said  Benjamin  Beal,  all  accounts  relating  to  the 
matters  in  dispute  as  aforesaid ;  which  settlement  appears  by  the  annexed  accompt  and 
vouchers,  and  which  we  humbly  submit  to  the  approbation  of  your  excellency." 

After  which  the  account  referred  to  is  entered  at  large,  and  then  follows  this  decree. 

14th  Febi-uary,  1764. — Sharpe,  Chancellor. — It  appearing  to  this  court  by  the 
report  made  by  John  Stevenson,  Bryan  Philpot,  and  Lancelot  Jacques,  three  of 
the  four  commissioners  who,  or  three  or  two  of  whom  were  appointed  to  state, 
audite,  settle,  and  adjust  all  accounts  relating  to  the  matters  in  dispute,  that  there  is 
due  to  the  said  complainant  Caleb  Dorsey,  six  hundred  and  ninety-nine  pounds 
ten  shillings  and  four  pence  half-penny  sterling,  from  the  said  defendant  Henrietta 
Maria  Dulany,  as  administratrix  aibresaid,  after  deducting  and  discounting  tlie  bond 
and  two  promissory  notes  in  the  said  defendant's  answer  mentioned,  to  wit,  the  bond  of 
the  said  complainant  to  the  aforesaid  Edward  Dorsey,  dated  the  twenty-first  day  of 
February  seventeen  hundred  and  fifty-seven,  conditionedfor  the  payment  of  one  hun- 
dred and  fii'tj'-six  pounds  nine  shillings  and  eleven  pence  halfpenny,  current  money, 
at  or  upon  tlie  first  day  of  April  then  next  with  legal  interest,  and  the  complainant's 
promissory  notes  to  the  said  Edward  Dorsey,  one  dated  the  fifteenth  day  of  September 
seventeen  hundred  and  fifty-seven,  for  sixty-two  pounds  two  shillings  and  four  pence 
sterling  with  legal  interest,  and  the  other  dated  the  tenth  day  of  October  seventeen 
hundred  luid  fifty-nine,  for  two  hundred  and  fifty  pounds  and  eleven  shillings  sterling 
with  legal  interest. 

Whereupon  this  court  doth  think  fit,  and  accordingly  doth  order  and  decree, 
that  the  said  defendant  Henrietta  Maria  Dulany,  out  of  the  goods,  chattels,  rights 
and  credits  which  were  of  the  aforesaid  Edward  Dorsey  deceased  at  the  time  of  his 
death,  in  her  hands  remaining  to  be  administered,  pay  to  the  aforesaid  Caleb  Dorsey 
the  said  balance  of  six  hundred  and  ninety-nine  pounds,  ten  shillings  and  four  pence 
half-penny  sterling,  and  also  that  she  deliver  up  to  the  said  Caleb  Dorsey,  the  said  men- 
tioned bond  and  two  promissory  notes  to  be  by  him  cancelled,  destroyed  or  otherwise 
disposed  of  as  he  shall  think  fit.— C/ta/i.  Proc.  Lib.  D.  D.  No.  J.  315. 
(6)  1785,  ch.  72,  s.  17. 


DORSE Y  V.  HAMMOND.  4(57 

of  the  court.  He  is  stationed  near  to  the  Chancellor,  and,  when 
any  calculations  or  statements  are  wanted,  all  the  pleadino^s,  exhi- 
bits and  proofs  are  put  into  his  hands,  so  as  to  enable  him  fully  to 
investigate,  and  put  the  M-hole  matter  in  proper  order  as  required. 
As  an  incident  to  every  reference  of  a  case  to  the  auditor,  he  is 
thereby  virtually,  if  not  expressly,  as  under  a  commission  to  audit 
accounts,  authorized  to  take  any  testimony  deemed  requisite  in 
relation  to  any  account  which  may  be  necessary  or  which  the  par- 
ties may  desire  to  be  stated  by  him.(f)  But,  if  it  be  necessary  to 
collect  proof  from  a  distance,  the  parties  may  either  have  a  regular 
commission,  or  be  allowed,  by  a  common  order,  to  have  it  taken  any 
wdiere  within  the  State,  before  any  justice  of  the  peace,  on  giving 
notice  to  the  opposite  party.  All  the  materials,  from  which  the 
auditor  makes  his  calculations  and  statements  preparatory  to  a  final 
adjudication  upon  the  matters  in  controversy,  are  thus,  by  various, 
cheap,  and  contemporaneous  movements,  brought  together  at  one 
place,  and  before  an  officer  conversant  wuth  the  rules  and  prin- 
ciples by  which  the  case  is  to  be  decided,  by  a  court  constantly 
stationary  and  always  accessible.  With  such  facilities,  where  the 
parties  are  themselves  diligent,  there  can  be  no  unreasonable  delay, 
nor  any  difficulty,  but  what  arises  out  of  the  peculiar  ambiguity 
of  the  proofs,  or  the  real  complexity  of  the  case. 

The  costs  of  the  court  are  no  more,  in  any  case,  than  a  just  com- 
pensation for  the  labour  required.  The  auditor's  fees  are  consid- 
ered as  a  part  of  the  costs ;  and,  as  such,  are  always  included 
in  every  general  award  of  .costs  against  a  plaintiff  or  defendant; 
and  the  ■  payment  of  them  may  be  enforced,  against  the  party 
properly  chargeable,  in  the  first  instance,  in  the  same  summary 
manner  as  any  other  costs. ((^)  But  in  some  cases  it  becomes  a 
matter  of  doubt  who  is  properly  chargeable,  in  the  first  instance, 
with  the  auditor's  fees.  The  law  declares,  that  they  are  to  be 
"paid  by  the  party  dmrino"  such  account  to  be  stated."  Upon 
which  it  has  been  held,  that  in  all  cases  where  an  account  is 
necessary  in  any  manner  to  ascertain  the  claim  of  a  party,  he  alone 
is  chargeable,  although  he  may  not  have  specially  desired  the 
account ;  and  in  all  other  cases,  where  a  party  particularly  instructs 
the  auditor  to  state  an  account  in  a  certain  way,  he  alone  is 
chargeable,  upon  the  ground  of  its  having  been  specially  desired 


(c)  Prac.  Reg.  309.— (rf)  Denny  v.  Wallace  &  Davidson,  MS.  1S06;  Farrow  v. 
White,  1  Jac.  &  Walk.  623. 


468  DORSEY  V.  HAMMOND. 

by  him.(fZ)  The  auditor  is  allowed  by  law  $4  67  per  day  for 
every  day  he  shall  reasonably  be  employed  in  stating  any  account ; 
•which,  by  long  established  usage,  has  been  construed  to  mean 
an  allowance  of  that  fee  for  every  account,  however  short  it 
may  be.  In  this  case  the  auditor  has  already  stated  two  accounts, 
for  each  of  which  he  has  been  allowed  that  fee ;  but  in  the  most 
difficult  cases,  and  where  a  statement  and  distribution  are  required 
to  be  made,  among  a  great  multitude  of  claimants,  his  fees  have 
rarely  altogether  exceeded  one  hundred  dollars  in  any  one  case. 

Under  a  creditors'  bill  it  is  a  rule,  that  all  costs,  including  the 
expenses  of  the  sale  ;  the  survey,  if  any  be  ordered,  or  required, 
either  to  lay  off  the  land  into  lots,  as  in  this  instance,  or  to 
ascertain  the  quantity  sold,  where  the  estate  has  been  sold  by 
the  acre ;  and  all  taxes,  are  to  be  first  paid  from  the  proceeds  of 
sale ;  and  the  balance  only  rateably  distributed  among  the  credi- 
tors, who  are,  in  that  way,  made  to  contribute  in  due  proportion  to 
defray  the  expense  of  the  suit.(e)  Yet,  according  to  the  course  of 
the  court,  any  other  creditors  may  be  allowed  to  come  in,  at  any 
time,  before  a  final  account  has  been  stated  and  ratified,  and  before 
the  court  has  actually  parted  vrith  the  fund  ;  but  if,  in  order  to  give 
them  a  dividend,  after  the  auditor  has  made  his  report,  it  is  neces- 
sary to  re-state  the  account ;  as  it  is  made  for  their  benefit  exclu- 
sively, the  costs  of  the  re-statement  are  deducted  from  the  divi- 
dends allotted  to  them  as  the  terms  upon  which  alone  they  can 
be  allowed  to  come  in  and  participate. (/")  But  this  rule  applies 
only  where  the  proceeds  of  sale  are  insufficient  to  pay  all,  as  in 
this  instance ;  for  if  there  be  a  surplus,  there  can  be  no  reason  why 
it  should  not  be  applied,  as  against  the  heirs  or  devisees,  in  full 
satisfaction  of  the  principal,  interest  and  costs  of  a  just  debt,  to 
which  they  can  make  no  well  grounded  objection. (^) 

{(l)  Denny  i'.  Norwood,  ]MS.  1806 ;  Denny  v.  Wallace  St  Davidson,  MS.  1806. 
(e)  Hare  v.  Rose,  2  Ves.  558  ;  Shoitley  v.  Selby,  5  Mad.  447  ;  Bluett  v.  Jessop,  Jac. 
Rep.  243.— (/)  2  Fow.  Ex.  Pra.  279,  254;  Angell  v.  Pladdon,  1  Mad.  Rep.  528. 
(g)  Bromley  i'.  Goodere,  1  Atk.  75 ;  Butcher  v.  Churchill,  14  Ves.  573 ;  Ex  parte 
Mills,  2  Ves.  jun.  295  ;  Ex  parte  Hankey,  3  Bro.  C  C.  504 ;  Ex  parte  Decy,  2  Ball  & 
B.  77 ;  Tyson  v.  Hollingsworth,  MS.  12th  July  1808. 

Low  V.  Conner. — ^This  was  a  creditors'  petition,  filed  22d  Februarj- 1790,  pray- 
ing, that  the  lands  of  James  Conner  might  be  sold  to  pay  his  debts,  for  which  his 
personal  estate  was  insufficient.  1st  September,  1791,  decree  for  a  sale  in  the  usual 
form.  Sale  made  and  reported.  4th  March  1792,  ordered,  that  the  return  of  Joshua 
Townshend,  trustee  for  the  sale  of  the  real  estate  of  James  Conner,  this  day  made  be 
approved  ;  and  that  his  proceedings  and  the  sale  by  him  made  be  approved,  ratified 
and  confirmed,  unless  cause  to  the  contrary  be  shewn  on  or  before  the  fourth  day  of 


DORSE  Y  V.  HAMMOND.  459 

The  objections  urged  against  this  report  indicate  an  opinion 
of  the  solicitor,  that  the  auditor  had  some  how  stepped  beyond 
his  proper  sphere  in  making  it  as  he  has  done.  No  officer 
should  allow  himself  to  deviate  from  the  line  of  duty  marked  out 
for  him  by  law.  The  auditor  is  properly  a  mere  ministerial  officer 
of  the  court.  It  is  true,  that  he  may  legally  administer  an  oath  to 
a  witness  and  take  his  testimony  in  relation  to  an  account  desired 
to  be  stated ;  (A)  yet  he  has  no  judicial  power;  nor  can  the  legis- 
lature constitutionally  confer  any  portion  of  the  Chancellor's  judi- 
cial power  upon  him.  He  is  not  in  any  sense  an  arbitrator ;  nor 
is  his  report,  under  any  circumstances,  considered  as  obligatory  on 
the  parties,  unless  confirmed  by  the  court.  When  a  case  is  referred 
to  arbitrators,  the  court  divests  itself  of  all  judgment,  and  the 
arbitrators  are  constituted  judges  of  the  fact  without  appeal; 
on  a  reference  to  the  auditor  it  is  otherwise, — he  is  only  to  pre- 
pare the  case  as  a  minister  for  the  Chancellor  who  is  really 
the  judge. (z)  Nor  can  the  auditor  be  allowed  to  act,  in  any 
manner,  as  a  prjing,  pragmatical  agent,  hunting  up  and  col- 
lecting the  means  of  making  or  sustaining  any  claim,  or  objec- 
tion in  relation  to  the  matter  in  controversy.  It  is  his  duty 
to  confine  himself  strictly  to  that  which  appears  upon  the  face 
of  the  proceedings  and  proofs,  and  to  abstain  from  suggest- 
ing any  objection,  prejudicial  to  any  party,  which  the  court,  in  its 
regular  course,  would  not,  of  itself,  notice  and  sustain,  if  founded 
in  fact.  It  is  his  duty  to  examine  and  digest  accounts ;  to  prepare  the 

May  next.     lOth  December  1792  ;  no  cause  having  been  shewn  the  sale  was  abso- 
lutely ratified. 

ll//t  December,  1792. — Ha.vson,  Chancellor. — Each  of  the  creditors  of  James 
Conner  deceased,  mentioned  in  the  report  of  the  auditor,  is  entitled,  not  only  to  the 
sum  set  down  opposite  to  his  name  out  of  the  principal  money  due,  or  paid  by  the 
purchasers  of  Conner's  real  estate,  but  likewise  to  his  just  proportion,  or  dividend  of 
the  interest  paid,  or  to  be  paid  on  the  sum  of  £  112  19s.  IJci,  which  appears,  from  the 
said  report,  to  be  the  net  product  of  the  sale. 

The  decree  directs  the  money  arising  from  the  sale  to  be  brought  into  court.  But 
if  the  trustee  shall  pay  to  each  of  the  creditors  aforesaid,  that  which  he  is  entitled 
to,  and  take  his  receipt  in  full,  he  will  probably  run  no  risk  of  being  sued  on  his 
bond. 

For  illustration.  N.  Latcham  appears,  from  the  report  aforesaid,  entitled  to  the 
sum  of  £6  5s.  Id.  out  of  the  sum  of  £112  19s.  lid.  He  is  likewise  entitled  to  his 
dividend  of  the  interest,  which  the  trustee  shall  receive  on  the  said  £112  19s.  IJrf. 
Suppose  two  years  interest  to  be  paid  on  the  said  £112  19s.  lid.  This  will  be  about 
£1.3  lis.  Od.  Then  as  =£112  19s.  l^d.  is  to  £13  lis.  Od.  so  is  the  sum  of  £6  5s.  Id. 
to  the  additional  sum  which  the  said  Latcham  will  be  entitled  to.     So  of  the  rest. 

(h)  Moore  v.  Aylet,  2  Dick.  641.— (i)  Field  v.  Holland,  6  Cran.  21 ;  Dick  v. 
Milligan,  2  Ves.  jun.  24. 


470  DORSE\  V.  HAMMOND. 

materials  on  which  a  decree  or  final  disposition  of  the  case  may  be 
made  ;  and  to  report  the  result  of  his  examinations,  subject  to  all 
exceptions  of  the  parties,  and  to  the  further  order  of  the  Chancel- 
lor. On  a  consideration  of  this  case  it  does  not  appear,  that  the 
auditor  has  in  any  respect  departed  from  the  proper  line  of  his 
duty.(i) 

According  to  the  long  established  practice  in  creditors'  suits 
it  has  been  most  usual,  and  particularly  so  of  late  years,  to 
order  the  case  to  the  auditor,  or  rather  for  the  trustee  or  a  party 
interested  to  take  it  to  him,  after  the  time  allowed  to  other  cre- 
ditors to  exhibit  their  claims  has  elapsed,  and  have  an  account 
stated  and  reported.  It  is  true,  that  the  court  may  be  called 
upon,  in  the  first  instance,  to  decide  upon  all  or  any  one  of  the 
claims,  which  have  been  exhibited.  This  course  is  now,  how- 
ever, rarely  or  never  taken,  unless  when  there  is  supposed  to 
exist  some  very  unusual  difficulty.  When  the  case  goes  to  the 
auditor,  without  any  previous  instructions  from  the  court,  he  admits 
into  his  account  every  claim  that  has  been  filed  and  properly 
authenticated,  with  all  others  which  there  is  any  plausible  reason 
to  believe  may  be,  in  any  way,  sustained  by  proof  and  allowed, (/c) 

In  making  distribution  of  the  proceeds  of  a  deceased  debtor's 
real  estate  among  his  creditors,  this  court  is  directed  by  an  act  of 
assembly, (/)  (which  in  this  respect  is  not  at  all  affected  by  the  tes- 
tamentary system,) (m)  to  pay  away  the  proceeds  of  the  realty  in  the 
same  order ,  that  is  to  be  observed  by  an  executor  or  administrator 
in  making  payments  out  of  the  personalty. 

It  has  always  been  the  practice  in  this  court  to  require  all  claims 
to  be  proved  before  they  are  allowed  either  for  the  whole  or  admitted 
to  a  dividend,  in  the  same  manner  as  they  would  be  required  to  be 
authenticated  in  order  to  be  passed  by  an  Orphans  Court ;  and 
therefore  no  claim,  coming  in  under  a  creditors'  bill,  will  be  passed 
or  allowed,  which  could  not,  according  to  law,  be  passed  and 
allowed  against  the  personal  estate  by  an  Orphans  Court.  This 
was  the  practice  long  before  the  passage  of  the  general  testamen- 
tary act  ;(w)  and  has  continued  to  be  so  ever  since. 

It  has  also  been  always  a  settled  rule  of  this  court,  and  is  one 
which  has  been  affirmed  by  the  Court  of  Appeals,  that  a  judgment 
against  an  executor  or  administrator  is  of  no  avail  against  the 

U)  Le  Sage  v.  Coussmaker,  1  Esp.  Rep.  187 ;  Field  v.  Holland,  6  Cran.  21. 
{k)  Field  V.  Holland,  6  Cran.  26.— (Z)  1785,  ch.  80,  s.  7.— (m)  1798,  ch.  101.— (n)  1798, 
ch.  101. 


DORSEY  V.  HAMMOND.  472 

heirs  of  the  deceased  debtor ;  not  even  so  far  as  to  prevent  the 
operation  of  the  statute  of  limitations. (o)  Therefore  these  judg- 
ments which  have  been  obtained  against  the  executor,  cannot 
relieve  these  creditors  from  the  necessity  of  producing  the  usual 
proofs  of  their  claims.  Their  original  causes  of  action,  as  they 
stood  before  these  judgments  were  rendered,  must  be  proved  as 
against  these  heirs  precisely  as  if  no  such  judgments  had  ever  been 
obtained. 

And  generally  in  other  respects  all  claims  must  appear  upon  the 
face  of  them,  prima  facie,  to  be  just  and  fair ;  and  to  have  obtained 
or  had  assured  to  them,  at  the  instance  of  the  creditor,  payment 
from  no  other  person  or  fund.  Unless  a  claim  is  thus  authenticated, 
and  upon  the  face  of  it  clear,  it  will  not  be  allowed,  even  although 
no  objection  should  be  made  to  it  by  any  one  interested.  And  con- 
sequently it  has  always  been  considered  to  be  the  duty  of  the 
auditor  to  notice,  in  his  report,  all  objections  of  this  description. 
The  auditor  has  no  right  certainly  to  moot  cases  to  the  court ;  or  to 
make  any  objections,  such  as  the  statute  of  limitations,  or  the  like, 
which  can  only  come  with  propriety  from  a  party  interested,  and 
which,  therefore,  if  made  by  the  auditor  alone,  will  be  disregarded. 

But,  notwithstanding  a  claim  may  have  been  formally  vouched 
and  reported  as  clear  of  all  apparent  objections,  yet  any  party 
interested,  a  defendant  or  a  co-creditor,  may  deny  its  existence  and 
oppose  its  allowance  altogether,  in  which  case  it  must  be  regularly 
and  legally  established,  as  upon  an  issue  joined  in  a  court  of  law. 

It  has  been  found  in  practice,  that  there  are  several  important 
advantages  in  sending  the  case  at  once  to  the  auditor,  and  having 
an  account  stated.  The  claimants  are  immediately  apprised  of 
what  is  wanted,  if  any  thing,  to  sustain  their  claims  :  those  against 
which  there  is  no  objection  may  obtain  satisfaction,  or  at  least  a 
dividend  without  further  delay.  The  heirs  and  each  creditor  are 
informed  of  the  nature  of  the  distribution  proposed  to  be  made. 
Each  claim  is  presented  in  a  clear  and  distinct  point  of  view.  The 
debatable  ground  is  designated,  its  extent  reduced,  and  the  pro- 
gress of  the  cause  accelerated. 

The  objection,  that  these  claims  No.  3,  4,  and  5,  are  each  of 
them  founded  on  such  a  judgment  against  the  executor  as  carries 
in  itself  conclusive  evidence  of  a  sufficiency  of  personal  assets  to 


(0)  Hanvood  i-.  Rawlings.  4  H.  &,  J.  126 ;  Duvall  i\  Green,  4  II.  Si  J.  270  ;  Mason 
V.  Peter,  1  Mun.  437. 


472  DORSEY  V.  HAMMOKD. 

satisfy  them^  goes  to  their  merits,  and  unless  clearly  obviated,  they 
must  be  rejected.  These  claimants  do  not  allege,  that  it  will  be  in 
their  power  to  remove  this  objection,  by  any  means  whatever,  but 
rest  their  case  entirely  upon  the  fact  of  its  having  no  foundation  in 
equity.  It  is  certain,  that  an  absolute  judgment,  obtained  without 
mistake  or  fraud,  is  conclusive  evidence  of  a  sufficiency  of  assets 
in  the  hands  of  the  executor  to  satisfy  such  judgment.(jo)  The 
admission  of  the  defendants  in  this  case  of  the  insufficiency  of  the 
personal  estate  was  made  with  reference  to  none  other  than  the 
claim  of  the  originally  suing  creditor  by  whom  it  was  called  for. 
Now  it  may  be  perfectly  true,  that  the  executor  has  actually 
reserved  assets  to  pay  claims  No.  3,  4,  and  5 ;  and,  yet  no  less 
true,  that  he  has  nothing  left  to  meet  the  claim  of  this  plaintiff. 

There  is  then  nothing  in  this  objection  of  the  auditor  incompat- 
ible with  the  previous  proceedings  or  acts  of  the  court ;  or  which, 
as  has  been  urged,  militates  against  the  decree  w^hich  was  grounded 
upon  an  alleged  and  admitted  insufficiency  of  personal  estate  to 
satisfy  the  claim  of  the  plaintiff;  for  these  claims  No.  3,  4,  and  5, 
were  not  then  before  the  court. 

But  it  is  said  to  be  an  established  principle  of  this  court,  that 
where  it  appears,  upon  the  face  of  the  voucher,  that  the  creditor 
m.ay  or  can  obtain  payment,  by  pursuing  another  and  more  proper 
person  or  fund,  he  shall  not  be  permitted  to  come  here,  and  partake 
of  the  realty  to  the  prejudice  of  the  heir  or  of  other  creditors.  It  is 
upon  this  ground,  that  an  obligee  is  turned  aside  to  seek  payment  of 
the  whole  or  a  proportion  from  a  principal,  or  a  co-surety  who  is  sol- 
vent. These  creditors  have  established  their  claims  as  against  the 
personalty,  or  natural  fund,  of  the  sufficiency  of  which  to  satisfy  them, 
their  judgments  afford  conclusive  evidence.  If  they  now  leave  it  and 
obtain  satisfaction  from  the  realty,  what  is  to  become  of  the  amount 
of  personalty  which  their  judgments  prove  to  exist  in  the  hands  of 
the  executors  ?  Is  the  executor  to  be  suffered  to  retain  it,  or  is  the 
heir  to  be  allowed,  upon  the  principle  of  substitution,  to  obtain  it  ? 
But  the  demand  of  a  creditor  upon  the  heir  is  always  and  must 
necessarily  be  founded  upon  the  fact,  that  the  personalty  is  not 
sufficient  to  satisfy  the  claim.  These  considerations  have  con- 
vinced me,  that  the  auditor's  objection  is  correct,  and  that  these 

(p)  Whcally  v.  Lane,  1  Sauiid.  219  n.  S;  Skelton  v.  Havvling,  1  Wils.  258;  Suf- 
folk V.  Harding,  3  Rep.  Chan,  8S  ;  Ramsden  v.  Jackson,  1  Atk.  292 ;  Greerside  v. 
Benson,  3  Atk.  248  ;  Robinson  v.  Bell,  2  Vern.  146;  Ruggles  v.  Slierinan,  14  John. 
446 ;  Giles  v.  Peri-yman,  1  H.  &  G.  1G8  ;  Gaither  v.  Welch,  3  G  &  J.  259. 


DORSEY  V.  HAMMOND.  473 

claims  No.  3,  4.  and  5,  ought  not  to  be  allowed  to  partake  of  the 
proceeds  of  the  realty. 

Whereupon  it  is  ordered,  that  the  said  claims,  designated  by  the 
auditor  as  No.  3,  4,  and  5,  be  and  the  same  are  hereby  rejected. 
And  the  auditor  is  directed  to  re-state  the  account  accordingly. 


George  Barber,  whose  claim  had  been  stated  as  No.  3,  and 
Charles  Waters,  whose  claim  had  been  stated  as  No.  4  and  5,  filed 
their  several  petitions,  on  the  7di  of  July  1828,  without  oath,  in 
which  they  alike  state,  that  it  was  in  their  power  to  show,  by  evi- 
dence not  now  in  the  proceedings,  that  the  personal  estate  of  the 
deceased  had  been  exhausted  in  the  payment  of  other  just  debts  ; 
that  the  executor  was  insolvent ;  and  that  his  sureties  might  be 
relieved  in  equity.'  Whereupon  they  prayed,  that  they  might  be 
allowed  to  adduce  further  proof,  and  that  the  order  of  the  22d  of 
March  might  be  rescinded,  &c. 

8th  July,  1828. — Blaxd,  Chancellor. — These  petitions  do  not 
allege,  that  there  is  any  error  apparent  upon  the  face  of  the  deci- 
sion of  the  court ;  nor  do  they  set  forth  and  aver,  that  the  petition- 
ers have  discovered  any  new  testimony,  not  known  to  them  at  the 
time  the  opinion  of  the  court  was  delivered  ;  consequently,  inde- 
pendently of  the  want  of  any  affidavit  to  their  petitions,  they  have 
laid  no  foundation  for  a  bill  of  review,  even  if  they  had  asked  leave 
to  file  such  a  bill ;  or  this  were  a  case  in  which  such  a  form  of 
proceeding,  or  something  equivalent  to  it,  would  be  proper.  Nor 
is  it  stated  in  these  petitions,  that  there  has  been  any  mistake, 
oversight,  or  misapprehension  in  the  judgment  pronounced  ;  there- 
fore there  is  no  ground  for  a  re-hearing. 

But  these  claimants,  after  having  had  a  formal  hearing  of  their 
case,  upon  all  such  facts  and  circumstances  as  they  then  deemed 
pertinent  or  necessary  ;  and,  after  having  submitted  it  for  a  deci- 
sion ;  and,  after  their  claims  had  been  rejected,  upon  the  ground 
of  that  very  objection  of  which  they  had  full  and  timely  notice, 
now  ask  to  have  the  order  so  passed,  rescinded  for  the  purpose  of 
allowing  them  to  introduce  other  proofs,  not  now  in  the  proceed- 
ings, to  remove  those  objections,  and  in  fact  to  give  to  their  case 
an  entirely  different  comj)lexion. 

If  such  a  course  could  be  tolerated,  under  any  circumstances, 
there  would  be  no  stability  in  any  decision  whatever ;  for,  there  is 
no  case  in  which  the  parties  might  not  have  some  pretext  for  intro- 
ducing additional  proof,  of  one  kind  or  other,  to  vary  the  case  in 

60 


474  FENWICK  V.  LAUGHLIN. 

some  way,  after  the  reasons  and  grounds  of  the  judgment  of  the 
court  had  been  fulty  explained  and  made  known.  Instead  of  the 
parties  being  obliged  to  bring  all  the  facts  and  circumstances  of 
their  case  at  once  before  the  court,  they  would  be  continually 
tempted  to  w'ithhold  some  particulars,  expressly  with  a  view  to 
have  it  reconsidered  and  amended  in  those  points  where  they  saw, 
from  the  opinion  of  the  court,  that  the  law  pressed  most  against 
them.  Such  a  course  of  proceeding  would  open  a  door  to  the 
greatest  frauds,  and  could  not  but  be  attended  with  the  most 
grievous  expense  and  delay.  Therefore  as  these  claims  have  been 
adjudicated  upon,  in  the  manner  and  upon  the  grounds  on  w^hich 
they  had  been  advisedly  and  deliberately  presented  for  decision,  I 
deem  it  improper  now  to  suffer  them  to  be  again  brought  before  the 
court  in  a  new  shape,  on  different  principles,  and  other  proofs. 

Whereupon  it  is  ordered,  that  these  petitions  be  and  the  same 
are  hereby  dismissed  with  costs. 


From  this  order  as  well  as  that  of  the  22d  of  March  there  was 
an  appeal,  and  on  the  6th  December  1831  the  appeals  were  dis- 
missed with  costs. 


FENWICK  V.  LAUGHLIN. 


Where,  on  a  bill  by  a  mortgagee  against  the  heirs  of  a  deceased  mortgagor,  the  mort- 
gaged estate  had  been  sold  to  pay  the  mortgage  debt,  leaving  a  surplus ;  other 
creditors  of  the  deceased  were  allowed  to  come  in,  on  the  ground  of  the  insufficiency 
of  the  deceased's  personal  estate  ;  considering  the  surphis  as  a  residuum  of  tlie  real 
assets  wliicli  had  been  taken  fiom  tlie  hands  of  the  heirs ;  and  to  have  the  case 
thenceforth  considered  and  treated  as  a  creditors'  suit. 

This  bill  was  filed,  on  the  20th  of  April,  1827,  by  Martin  Fen- 
wick  and  Francis  Bird,  against  William  Lauglilin  and  Jonathan 
Hawkvtis,  to  foreclose  a  mortgage  of  real  estate  given  by  the  late 
Jonathan  JV.  Laughlin,  the  ancestor  of  the  defendants,  to  the  plain- 
tiffs. The  defendants  put  in  their  answers,  admitting  the  facts  as 
stated  in  the  bill ;  upon  which,  on  the  22d  of  May,  1827,  it  was 
decreed,  that  the  mortgaged  property  be  sold.  And  the  trustee 
having  reported,  that  he  had  made  a  sale  accordingly,  it  was 
ordered  as  usual,  that  the  sale  be  ratified  unless  cause  be  shewn. 
And  no  cause  being  shewn,  the  sale  was  finally  ratified  on  the  9tb 
of  July  1828. 


FEPTWICK  1-.  LAUGHLIN.  475 

On  the  13th  of  March  1828,  Isaac  Owens,  Benjamin  Wells,  and 
Martin  Fenwick,  on  behalf  of  themselves  and  the  other  creditors 
of  the  late  Jonathan  JV.  Laughlin,  filed  their  petition  in  this  case, 
in  which  they  stated,  that  the  deceased  was  indebted  to  Gicens  in 
the  sum  of  $95  60 ;  to  Wells  in  the  sum  of  $55  84,  and  to  Fen- 
wick  in  the  sum  of  $45  50.  That  the  personal  estate  of  the 
deceased  was  totally  insufficient  to  pay  his  debts ;  and  that  the 
proceeds  of  the  sale  of  his  mortgaged  real  estate,  sold  under  the 
decree  in  this  case,  was  more  than  sufficient  for  the  payment  of  the 
mortgage  debt.  Whereupon  they  prayed,  that  they,  with  the  other 
creditors  of  the  deceased,  might  be  paid  out  of  this  surplus,  &c. 

14:tk  March,  1828. — Bland,  Chancellor. — Where  a  bill  has  been 
filed  against  the  heirs  of  a  deceased  mortgagor  to  obtain  payment 
by  a  sale  of  the  mortgaged  property  ;(a)  or  where  a  bill  has  been 
filed  to  obtain  a  partition  of  an  intestate's  real  estate  among  his 
heirs  ;(6)    or   where    a   deceased    debtor's    real    estate   has   been 

{a)  O'Brian  v.  Bennett,  ante,  S6 ;  Latimer  v.  Hanson,  ante,  51. 

(6)  Spurrier  v.  Spcrrier. — This  petition,  filed  on  the  21st  of  September  1810, 
states,  that  the  late  John  Spurrier  died  intestate  seized  of  a  valuable  real  estate, 
which  would  not  admit  of  division  among  his  widow  and  children,  some  of  whom 
were  manied  and  others  infants,  who  are  his  heirs ;  all  of  whom  are  parties  to  this 
suit.  Prayer,  that  the  real  estate  may  be  sold  and  the. proceeds  divided.  The  answers 
admit  these  facts.  "Wliereupon  it  was,  on  the  15th  of  March  1811,  decreed,  in  the 
usual  form,  that  the  lands  be  sold,  and  they  were  sold  accordingly. 

After  which  Henrj-  McCoy  by  petition  stated,  that  the  late  John  Spurrier  was 
considerably  indebted  to  him  ;  that  his  real  estate  had  been  thus  sold  ;  and  that  his 
personal  estate  was  insufficient  to  pay  his  debts.  Prayer,  that  an  order  may  pass 
notifying  the  creditors  to  exhibit  their  claims  ;  and  that  his  claim  may  be  paid,  &cc. 

\Sth  September,  1811. — Kilty,  Chancellor. — The  trustee,  for  the  sale  of  the  real 
estate  of  John  Spurrier  deceased,  is  desired  to  give  notice  to  the  creditors  to  exhibit 
their  claims  in  the  chancery  office  before  the  first  day  of  December  next,  by  adver- 
tisement inserted  three  weeks  in  the  American. 


Henry  McCoj-  by  another  petition  stated,  that  his  claim  had  been  passed  by  the  audi- 
tor and  the  Orphans  Court ;  that  the  sales  amounted  to  upwards  of  $-20,000,  and  the 
claims  to  not  more  than  about  $11,000  ;  that  he  was  tenant  to  the  purchaser,  at  the 
annual  rent  of  .51450  ;  and  he  therefore  prayed  that  his  claim  might  be  discounted 
through  the  purchaser  his  landlord. 

22d  March,  1812. — Kilty,  Chancellor. — The  Chancellor  cannot  direct  the  pa)-- 
raent  or  discount  of  anj-  claim  before  the  ratification  of  the  sale  ;  and  in  order  to  ite 
being  made  it  is  necessary-  to  prove  the  publication  of  the  conditional  order  of  rati- 
fication passed  September  9th  ISll,  which  may  be  done  by  the  certificate  of  the 
printer  or  the  production  of  the  newspapers.  It  is  necessary-  also  to  pioduce  the  fike 
proof  of  the  publication  of  the  order  of  September  ISth  1811,  on  the  petition  of 
Henry  McCoy  for  the  creditors  to  exhibit  their  claims. 


Archibald  Dorsey  by  petition  stated,  that  he  was  a  creditor  of  the  deceased,  and 


47(i  FENWICK  V.  LAUGHLIN. 

decreed  to  be  sold  in  any  other  manner  than  by  a  creditors'  bill : 
any  creditor  of  such  deceased  person  may  be  permitted  to  come 

that  his  claim  had  been  objected  to,  whereupon  he  prayed,  that  he  might  be  heard  on 
a  day  to  be  appointed. 

25th  May,  1812. — Kilty,  Chancellor. — On  the  above  application  the  following 
order  is  passed,  which  tlie  register  is  desired  to  hare  published  this  week  in  the 
Maryland  Republican: — In  Chancery,  May  25th,  1812.  Ordered,  that  the  claims 
against  ttie  real  estate  of  John  Spurrier  deceased,  to  which  exceptions  have  been 
filed,  will  be  decided  on,  on  the  1st  day  of  June  next. 


The  auditor  reported,  that  he  had  in  obedience  to  the  ord«r  of  the  Chancellor 
stated  an  account  of  the  claims  against  the  estate  of  the  deceased. 

•22d  July  1812. — Kilty,  Chancellor. — Ordered,  that  the  statement  of  the  claims  as 
reported  by  the  auditor  be  confirmed.  The  commissions  are  not  yet  fixed,  and 
therefore  the  usual  account  with  the  trustee  cannot  be  stated.  But  the  trustee  is 
authorized  and  directed  to  settle  with  the  said  claimants  by  payment  when  the  pro- 
ceeds of  the  sales  are  received,  or  by  discount,  or  assignment,  if  agreed  to  by  any  of 
them  •  the  amount  of  the  sales  being  more  than  tliat  of  the  claims,  and  leaving  a 
sufficiency  for  the  commissions  and  costs  and  the  claims  which  are  suspended. 


Roderick  Warfield  by  petition,  filed  30th  September  1312,  stated,  that  in  the 
lifetime  of  the  intestate  he  had  married  Henrietta  one  of  his  daughters ;  that  the 
trustee,  on  the  22d  day  of  June  1811,  sold  the  greater  part  of  the  real  estate  of 
the  intestate;  and  on  the  14th  day  of  November  1811  sold  the  residue;  that  the 
whole  purchase  money  was,  or  would  shortly  be  in  possession  of  the  trustee ;  that 
his  wife  Henrietta  died  on  the  9th  day  of  July  1811,  after  having  had  a  child 
born  alive  during  the  mamage  ;  that  the  trustee  refuses  to  pay  to  him  his  proportion 
of  the  estate  to  which  his  wife  was  entitled.  Pra5'er  to  take  testimony  to  substan- 
tiate tliese  facts  ;  that  the  trustee  be  ordered  to  pay  over  to  him  such  proportion  as 
he  is  entitled  to  receive  of  the  jiroceeds  of  the  real  estate ;  and  for  such  other 
relief,  &.c. 

\st  October,  1812. — Kilty,  Chancellor. —  On  the  above  application  it  is  ordered, 
that  depositions  in  Ann  Arundel  county,  taken  on  three  days'  notice  to  the  trustee  or 
to  the  petitioner,  be  received  in  evidence  on  the  hearing. 


Anne  Spurrier  by  petition  stated,  that  she  was  the  widow  of  the  intestate ;  that 
there  was  a  large  surplus  to  be  disbibuted  among  the  heirs  of  the  deceased,  four  of 
w^hom  are  minors,  who  reside  with  her,  as  their  mother  and  natural  guaidian  ;  that 
she  is  unable  to  maintain  them ;  and  is  willing  to  give  bond,  as  guardian,  for  any 
share  which  may  be  ordered  to  be  paid  to  her  for  them.  Prayer  that  the  surplus 
may  be  distributed ;  and  that  the  sliares  of  the  minors  be  paid  to  her. 

28/^  January,  IS  13. — Kilty,  Chancellor. — On  the  application  of  the  heirs  for  a 
distribution  of  the  proceeds,  it  is  ordered,  that  the  claims  be  reported  by  the  auditor 
on  the  10th  day  of  March  next  on  the  proof  then  exhibited,  for  the  final  decision  of 
the  court,  when  the  petition  of  Roderick  Warfield  will  also  be  acted  on.  A  copy  of 
this  order  to  be  inserted  three  weeks  in  the  Maryland  Republican. 


On  the  10th  March  1813,  the  auditor  reported,  that  at  the  request  of  the  trustee, 
and  in  obedience  to  the  Chancellor's  order  of  the  28th  January  1S13,  he  had  stated 
all  the  claims  exhibited  since  the  last  report  of  the  late  auditor.  And  among  other 
things  he  says,  "  The  claim  No.  37  appears  to  be  a  judgment  in  favour  of  Thomaa 


FENWICK  V.  LAUGHLIN.  477 

in  by  petition,  and  have  his  claim  allowed  and  paid  out  of  the 
whole  or  the  surplus  of  the  proceeds  of  the  realty  of  the  deceased 

Gumming  on  the  joint  and  several  bond  of  the  deceased  and  one  John  Gumming,  and  at 
the  request  of  the  trustee  the  auditor  has  stated,  as  part  of  the  claim,  the  costs  of  the 
deceased  as  defendant  as  well  as  the  plaintifi''s  costs,  the  whole  amount  as  stated 
having  been  paid  by  the  said  trustee  ;  and  the  said  whole  amount  so  stated  is  admitted 
in  writing  to  be  a  just  claim  against  the  deceased's  estate  by  his  eldest  son,  who 
admits  also  that  the  other  obligor  John  Gumming  is  insolvent.  The  said  claim  is 
moreover  accompanied  by  a  certificate  of  John  Purviance  esq'r,  as  counsel  for  the 
plaintiff,  that  no  part  thereof  has  been  received,  except  what  is  credited.  No  authentic 
certificate,  however,  is  produced  of  the  said  John  Cumming's  discharge  under  the 
insolvent  law  ;  supposing  him  to  be  the  principal  in  the  bond  on  which  the  judgment 
was  rendered.  No  proof  that  the  said  John  Gumming  was  security  onl3\  And  no 
affidavit,  that  the  said  judgment  has  been  fully  discharged. 

IZth  March,  1813. — Kilty,  Chancellor. — Gonsidering  the  report  and  statements 
by  the  auditor  and  the  evidence  adduced,  it  is  ordered,  that  all  the  claims,  as  stated, 
be  allowed  ;  except  the  last,  being  the  claim  of  T.  Watkins,  which  is  rejected.  The 
auditor,  in  stating  the  account  with  the  trustee,  will  allot  a  share  to  Roderick  War- 
field,  which  will  be  subject  to  the  order  of  the  Ghancellor  on  a  further  consideration 
of  his  petition,  and  the  arguments  in  writing  urged  against  it. 


After  which  the  case  was  again  submitted,  at  the  instance  of  the  widow  to  obtain 
a  portion  of  the  proceeds  of  sale  in  lieu  of  dower. 

14/A  September,  1813. — Kilty,  Chancellor. — The  widow  Ann  Spurrier  is  allowed, 
(her  age  being  proved)  one  eighth  part  of  the  net  proceeds  of  the  land  sold  to  G. 
Calvert  and  also  of  the  small  tract  sold  to  William  G.  Spurrier.  The  claim  No.  25 
having  been  paid,  according  to  the  former  order  before  that  of  May  26th  1S13,  is  con- 
firmed. .  The  claim  No.  24  is  rejected.  A  distribution  of  the  balance  to  be  made  as 
follows  : — The  same  to  be  divided  into  eight  parts,  one  of  wliich  is  to  be  reserved  for 
the  decision  of  the  claim  of  Roderick  Warfield.  The  amount  of  the  other  seven 
parts  to  be  equaJly  divided  between  John  and  Ann  Gumming,  William  G.  Spurrier, 
John  Spurrier,  Eliza  Spurrier,  Richard  Spurrier,  and  Horace  Spurrier,  Lewis  being 
stated  to  have  died  since  the  sale,  and  since  the  death  of  Henrietta  Warfield.  The 
payment  of  the  shares  of  John  Spurrier,  Eliza  Spurrier,  Richard  Spurrier,  and  Horace 
Spurrier,  who  are  minors,  to  be  made  to  their  mother  Ann  Spurrier  the  petitioner, 
on  the  approval  by  the  Ghancellor  of  a  bond  to  be  filed  by  her  with  two  stifficient 
sureties  with  condition  similar  to  that  in  guardians'  bonds,  but  reciting  the  sale,  8cc. 
under  the  decree  of  this  court;  and  not  before.  Interest  to  be  paid  on  the  shares  in 
proportion  as  it  has  been,  or  may  be  received.  The  petition  of  Roderick  Warfield 
will  be  taken  up  this  month  on  the  application  of  either  party. 


Proofs  having  been  collected  under  the  order  of  the  1st  of  October  1S12,  to  estab- 
lish the  facts  set  forth  in  the  petition  ;  it  appears  by  the  notes  of  Mr.  A.  G.  Magruder, 
submitted  in  opposition  to  the  prayer  of  this  petition,  that  he  insisted,  that  the  hus- 
band could  at  most  be  considered  only  as  a  tenant  by  the  courtesy ;  especially  for 
that  part  which  had  been  sold  after  the  death  of  the  wife ;  that,  even  if  it  were  to  be 
considered  as  her  money,  yet  it  was  a  mere  equitable  title  which  the  husband  could 
not  reduce  into  possession  without  making  a  proper  settlement.  (1  Vcs.  538,  3  P. 
Will.  13.)  But,  that,  in  this  case,  the  proceeds  must  be  regarded  as  land,  and 
pass  as  the  real  estate  would  have  passed  had  the  sales  not  been  made ;  and  it  had 
been  so  held,  after  much  consideration,  by  the  county  court  of  Prince  George's  iii 


478  FENWICK  V.  LAUGHLIN. 

so  far  as  they  will  go ;  considering  the  surplus  as  a  residuum 
of  the  real  assets  which  had  been  taken  from  the  hands  of  the 
heirs.  But  such  petitioning  creditor  will  be  required  to  establish 
his  claim  ;  to  show,  by  the  usual  proofs  or  admissions  of  the  party, 
the  insufficiency  of  the  personal  estate  of  the  deceased  to  pay 
his  debts  ;  to  notify  his  heirs,  that  they  may  have  an  opportu- 
nity of  contesting  the  allegations  of  the  petitioner,  and  the  justice 
of  his  claim  or  that  of  any  other  creditor  who  may  afterwards  come 
in,  as  is  allowed  on  a  creditors'  bill,  by  merely  filing  the  voucher 
of  his  claim ;  and  also,  he  or  the  trustee  to  give  notice  in  the  usual 
way,  to  the  creditors  to  bring  in  their  claims. 

Whereupon  it  is  ordered,  that  the  surplus  of  the  ptoceeds  of  the 
sale  of  the  said  mortgaged  estate  be  applied  to  the  satisfaction  of 
the  debts  of  the  said  Jonathan  JV.  Langhlin  deceased,  unless  good 
cause  be  shewn  to  the  contrary  on  the  second  day  of  June  next. 
Provided  a  copy  of  this  order,  together  with  a  copy  of  the  said 
petition,  be  served  on  the  said  defendants  on  or  before  the  12th  day 
of  April  next.  And  it  is  further  ordered,  that  the  said  trustee,  by 
publication  to  be  inserted  in  some  newspaper,  twice  a  week  for 
three 'successive  weeks  before  the  twelfth  day  of  April  next,  give 
notice  to  the  creditors  of  the  said  late  Jonathan  Jf.  Langhlin  to  file 
the  vouchers  of  their  claims  in  the  chancery  office,  on  or  before  the 
second  day  of  June  next. 

After  which,  upon  the  usual  proof  and  certificate  that  notice  had 
been  given,  and  publication  made  as  required  by  this  order,  the 
matter  was  submitted. 

9th  July ^  1828. — Bland,  Chancellor. —  Ordered,  \h^i  the  matter 
of  the  said  petition  be,  and  the  same  is  hereby  taken  pro  confesso  ; 
no  cause  having  been  shewn,  although  notice  has  been  given  as 

.1  similar  case  ;  and  the  husband  was  required  to  give  good  security,  (consider- 
ing him  as  tenant  by  the  courtesy,)  that  her  children  should  have  the  money  after 
his  death. 

29//t  November,  1813. — Kilty,  Chancellor. — On  the  within  petition  notes  have 
been  filed  by  the  counsel  on  behalf  of  the  heirs,  and  it  has  been  submitted  on  the 
part  of  the  petitioner.  The  original  bill  or  petition  appears  to  have  been  filed  under 
the  12th  section  of  the  act  of  1785,  ch.  72,  the  intention  of  which  appears  to  have 
been  to  turn  the  land  into  money  for  the  purpose  of  division.  "VVliich  sale  the  court 
is  not  bound  to  order  unless  for  the  interest  and  advantage  of  all  parties.  And  the 
practice  has  been,  as  fiir  as  the  Chancellor  has  been  informed,  to  divide  the  proceeds 
as  personal  estate.  And  the  acts  respecting  widows  entitled  to  dower,  and  tenants 
by  the  courtesy,  are  in  the  same  spirit.  It  is  therefore,  ordered,  that  the  part  allotted 
by  the  auditor  to  Roderick  Warfield  the  petitioner,  and  hitherto  reserved,  be  paid  to 
bim  in  the  manner  directed  as  to  the  otliers.     {Jones  v.  Jones,  ante,  443.) 


FORNSHILL  v.  MURRAY.  479 

ordered.  And  it  is  further  ordered,  that  this  case  be  and  the  same 
is  hereby  referred  to  the  auditor  with  directions  to  state  an  account 
accordingly. 


In  obedience  to  this  order  the  auditor  reported  a  distribution  of 
the  surplus  of  the  proceeds  among  twelve  of  the  creditors  of  the 
deceased,  nine  of  whom  had  come  in  under  the  order  of  the  14th 
of  March ;  which  distribution  of  the  auditor  was  confirmed,  and  the 
trustee  directed  to  apply  the  proceeds  accordingly,  on  the  SSth  of 
August  1828,  and  the  whole  case  so  finally  closed. 


FORNSHILL  v.  MURRAY. 


The  contract  of  marriage  is  the  parent,  not  the  child  of  civil  societj'.  If  valid  where 
celebrated,  it  is  valid  every  where.  It  cannot  be  cast  off  at  the  pleasure  of  the 
parties.  It  must  here  be  solemnized  in  the  face  of  a  church  or  with  the  blessing 
of  a  clergyman.  General  reputation,  or  proof  of  cohabitation  as  husband  and 
wife,  is,  in  general,  sufficient  evidence  of  a  contract  of  mairiage. 

The  county  courts  may  inquire  into  the  validity  of  certain  marriages. 

The  Court  of  Chancery  may  award  alimony  ;  and  it  may  also  declare  a  marriage  to 
be  void  which  has  been  procured  by  abduction,  terror,  and  fraud. 

No  judicial  proceeding  can  be  had  after  the  death  of  either  party  for  the  purpose  of 
having  their  marriage  declared  void,  or  of  bastardizing  any  one  after  his  death. 
But  where  the  validity  of  an  alleged  marriage,  or  the  legitimacy  of  any  one  forms  a 
necessary  link  in  the  chain  of  title  to  the  property  in  question,  there  such 
validity  or  legitimacy  may  be  inquired  into  and  determined,  either  by  a  court  of 
law,  or  of  equity.-  It  is  not  indispensably  necessary  in  any  case  to  make  up  an 
issue  to  have  the  facts  ascertained  by  a  jury. 

This  bill  was  filed  on  the  31st  of  January  1827,  by  John  Fonishill 
and  jinn  his  wife,  Alexander  M.  Williams  and  Sarah  his  wife, 
Andrew  Fulton,  and  William  Fulton  an  infant  by  Andrew  his  next 
friend,  against  William  V.  Murray  surviving  administrator  de  bonis 
non  of  Henry  Somervell,  and  William  Hubbard  administrator  of 
Thomas  Somervell. 

The  bill  states,  that  Mary,  the  sister  of  Henry,  by  her  first  mar- 
riage with  Andrew  Davidson  had  issue  the  plaintiffs  Ann  and 
Sarah,  and  by  her  second  marriage  with  William  Fulton  had  issue 
the  plaintiffs  Andrew  and  William ;  that  she  died  leaving  these 
four  children  ;  that,  some  time  after  her  death,  Henry  died  intestate 
without  leaving  a  widow  or  any  children,  or  the  descendant  of  any 


4S0  FORNSHILL  v.  MURRAY. 

children ;  that  he  left  a  large  personal  estate,  upon  which  letters 
of  administration  were  granted  to  James  Chapline,  who  died  soon 
after,  upon  which  administration  de  bonis  non  was  granted  to 
Thomas  Lookerman  and  the  defendant  Murray,  soon  after  which 
Lookerraan  died ;  that  some  time  after  the  death  of  the  intestate 
Henry,  his  brother  Thomas  died  intestate,  and  letters  of  administra- 
tion upon  his  estate  were  granted  to  the  defendant  Hubbard ;  and 
tliat  the  intestate  Henry  left  no  other  next  of  kin  at  the  time  of  his 
death,  than  the  plaintiffs,  and  his  brother  Thomas  ;  whereupon  the 
plaintiffs  prayed,  that  the  defendant  Murray  might  be  decreed  to 
account,  and  to  pay  to  them  their  distributive  shares  of  their  late 
uncle  Henry  SomerveWs  estnie,  &.c. 

To  this  bill  the  defendants  put  in  a  joint  and  separate  answer, 
in  which  they  admitted  that  Mary,  the  mother  of  the  plaintiffs,  had 
issue  and  died  as  stated  ;  that  the  intestate  Henry  left  a  considera- 
ble personal  estate ;  and  also  that  their  intestates  died,  and  admin- 
istration had  been  granted  as  set  forth.  But  they  alleged,  that  the 
intestate  Henry  left  other  next  of  kin  beside  those  mentioned  in  the 
bill,  and  that  Mary  the  mother  of  the  plaintiffs,  who  was  a  sister  of 
the  half-blood  of  the  intestate  Henry,  had  been  first  lawfully  married 
in  Ireland  about  the  year  1789,  to  John  Lewis,  w^ho  was  still  alive  and 
had  always  resided  there ;  and  that  she,  after  having  cohabited 
with  him  for  some  time  as  his  wife,  lefl  him  about  the  year  1792 
and  came  to  Maryland,  where  she  continually  resided  until  her 
death,  leaving  her  lawful  husband  John  Lewis  then  and  still  living. 
Whereupon  the  defendants  averred,  that  the  alleged  subsequent 
marriages  of  Mary  with  Davidson  and  w'ith  Fulton  were  utterly  void  ; 
and  that  the  plaintiffs,  Ann,  Sarah,  Andrew,  and  William,  were 
illegitimate  ;  and,  as  such,  absolutely  incompetent  legally  to  demand 
any  thing  as  the  next  of  kin  of  Henry  Somervell. 

A  commission  wms  issued  to  Ireland,  and  the  depositions  of 
several  witnesses  were  taken  and  returned  ;  from  which  it  appeared, 
by  the  testimony  of  two  witnesses  who  were  present  at  the  marriage 
ceremony,  that  Mary,  the  sister  of  the  intestate  Henry,  had  been 
married  to  John  Lewis,  who  was  then  living ;  and  that  they  had 
afterwards  cohabited,  as  husband  and  wife,  for  about  two  years ; 
w^hen  she  left  him,  and,  as  they  had  always  understood,  went 
from  Ireland  to  America.  The  testimony  of  these  two  witnesses 
was  corroborated  by  that  of  others,  who  declared,  that  they  knew 
the  intestate  Henryh  sister  Mary  and  John  Lewis  to  have  lived 
together  some  time,  as  husband  and  wife ;  and  that  they  were  so 


FORNSHILL  v.  MURRAY.  481 

reputed  to  be  in  the  neighbourhood  in  which  they  lived  ;  and  that 
Mary  left  her  husband  John  Lewis  and  migrated  to  America  about 
the  year  1792,  where,  as  they  had  heard,  she  had  continually 
resided  until  her  death  ;  and  that  John  Lewis  does  now,  and  always 
has  resided  in  Ireland.  In  addition  to  which  the  deposition  of  an 
attorney  was  taken,  who  testified,  that  such  a  marriage,  as  that 
described  by  the  other  witnesses,  was  valid  according  to  the  law 
of  Ireland ;  and,  that  he  had  known  such  marriages  to  be  held 
valid  in  the  courts  of  justice  there. 

12th  July,  1828. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing,  and  having  been  submitted  without  argument,  the 
proceedings  w^ere  read  and  considered. 

Marriao-e  has  been  considered  amons^  all  nations  as  the  most 
important  contract  into  which  individuals  can  enter,  as  the  parent 
not  the  child  of  civil  society. (a)  It  would  seem,  that  in  the  dark 
ages  a  notion  prevailed  of  the  mysterious  nature  of  the  contract  of 
marriage,  in  which  its  spiritual  nature  almost  entirely  obliterated  its 
civil  character  ;  by  which  notion,  some  were  carried  so  far  as  to 
say,  that  a  marriage  of  an  insane  person  could  not  be  invalidated  on 
that  account.  In  more  modern  times,  it  has  been  considered  in 
its  proper  light,  as  a  civil  contract,  as  well  as  a  religious  vow,  and, 
like  all  civil  contracts,  will  be  invalidated  by  want  of  consent  of 
capable  persons. (6)  It  has  been,  most  commonly,  every  where 
celebrated  by  some  religious  solemnities  ;  and,  from  its  nature  and 
objects,  has  been  held  to  be  obligatory  during  the  joint  lives  of  the 
parties,  without  the  power  of  being  thrown  off  at  the  pleasure  of 
either  or  both  of  them  ;(c)  except  perhaps  in  the  single  instance, 
according  to  the  ancient  and  now  obsolete  law,  where  the  husband 
or  wife  with  the  consent  of  the  other,  became  a  monk  or  nun  pro- 
fessed, whereby  the  contract  of  marriage  was  virtually  dissolved,  (c?) 

According  to  the  law  of  England,  a  contract  of  marriage  is 
not  deemed  complete,  so  as  to  entitle  the  wife  to  dower,  and  the 
issue  to  inherit,  unless  it  be  celebrated  in  the  face  of  the  church, 
or  with  the  blessing  of  a  priest.(e)  In  Scotland  no  religious  cere- 
mony is  necessary  to  constitute  a  legal  marriage  ;{f)  and  in  Eng- 


(o)  Dalrj-mple  r.  Dalrymple,  2  Hag.   Con.   Rop.  54. — (6)  Turner  v.   IVIeyers, 

1  Hag.  Con.  Rop.  41 J ;  Browning  v.  Reane,  2  Phill.  Rep.  69  ;  Shelf.  Lun.  59,  446  , 
Portsmouth  f.  Portsmouth,  1  Hag.  Rep.  3-55.— (c)  Gordon  f.'Pyc,  Fergusson's  Rep. 
Append,  note  A.  349  ;  Westmealii  v.  Westmeath,  1  Jac.  Rep.  138.— (rf)  Co.  Litt.  132. 
(c)  Dalrympte  !•.  Dali-jmple,  2  Hag.  Con.  Rep.  54. — (/)  Dalryraple  r.  DaJryiuple, 

2  Hag.  Con.  Rep.  54. 

61 


482  FORNSHILL  v.  MURRAY. 

land,  during  the  time  of  the  Commonwealth,  marriage  was  allowed 
to  be  contracted  before  a  justice  of  the  peace. (g-)  Jn  Maryland 
there  was  a  time  when  marriage  might  have  been  legally  contracted 
before  a  county  court  or  in  presence  of  a  magistrate  ;(A)  but  other 
provisions  having  been  made  upon  the  subject  by  the  legislature 
of  the  Province,(i)  and  by  the  General  Assembly  of  the  State,(j) 
it  would  now  seem  to  be  certainly  the  most  correct,  if  not  the  only 
legal  mode  of  contracting  marriage,  here  as  in  England,  by  having 
it  celebrated  in  the  face  of  some  church,  or  with  the  blessing  of  a 
clergj'man. 

In  general  it  is  sufficient  to  show,  that  a  man  and  woman  have 
cohabited  as  husband  and  wife ;  have  represented  themselves  as 
such  ;  or  have  been  reputed  in  the  neighbourhood  of  their  resi- 
dence to  have  been  legally  married,  to  establish  the  fact  of  their 
marriage  and  the  legitimacy  of  their  children.  The  only  exceji- 
tions  to  this  rule  are  the  cases  of  a  prosecution  for  bigamy,  and  an 
action  of  criminal  conversation,  in  each  of  which,  proof  of  an 
actual  marriage  is  necessary.  For  although  the  action  of  crim.  con. 
is,  in  its  form,  properly  a  civil  action,  yet  it  is  in  the  nature  of  a 
criminal  prosecution ;  and  if  proof  of  cohabitation  or  reputation 
w^ere  received  as  alone  sufficient  evidence  of  the  marriage,  it  would 
place  it  in  the  power  of  the  parties  to  collude  together  and  pass 
themselves  off  as  husband  and  wife  occasionally  for  the  express 
purpose  of  profiting  by  such  a  suit.(^■)  But  although,  in  such 
cases,  the  mere  general  reputation  of  a  marriage  may  not  be  deemed 
sufficient,  yet  it  appears,  that  the  deliberate  admission  of  the 
defendant  in  an  action  of  crim.  con.,  that  the  woman  was  the  wife 
of  the  plaintiff;  or  the  confession  of  the  accused  of  the  fact  of  the 
first  marriage  in  a  prosecution  for  bigamy,  will  even  in  those  cases 
be  received  as  sufficient  to  establish  the  fact  ©f  the  marriage. (Z) 

In  England  the  spiritual  court  has  jurisdiction  to  inquire  into 
the  validity  of  a  contract  of  marriage;  and  may,  in  certain  cases, 
determine,  that  it  is  wholly  void,  or  decree,  that  it  be  dissolved, 
and  that  the  parties  be  divorced  ;  but  in  all  cases  not  falling 
within  tlie  jurisdiction  of  the  ecclesiastical  courts  the  parliament 
alone  can  grant  relief.(m)  In  Maryland,  there  never  having  been 
an  ecclesiastical  court,  and  no  power  to  grant  a  divorce,  by  annul- 


(g)  4  Bac.  Abr.  531,  536.— (A)  1702,  ch.  1,  s.  4  ;  1715,  ch.  44,  s.  25.— (i)  1717, 
ch.  15.— (7)  Febiuaiy  1777,  ch.  12.— (A.)  Morris  v.  Miller,  4  Burr.  2057;  B'lviv. 
Bailow,  Doug.  171.— (0  Stark.  Evi.  4  pt.  36  &.  1185.— (m)  4  Bac.  Abr.  554. 


FORNSHILL  r.  MURRAY.  433 

ling,  for  any  cause,  a  contract  of  marriage  whicL  was  originally 
valid,  ever  having  been  conferred  upon  any  of  the  courts  of  jus- 
tice, it  follows,  that  a  divorce  can  only  be  granted  by  an  act  of 
the  General  Assembly.  (?i)  But  all  questions  concerning  alimony, 
even  under  the  provincial  government,  were  considered  as  having 
devolved  upon  the  Court  of  Chancery.  It  was  however  provided, (0) 
that  the  general  court  should  have  power,  on  an  indictment  or  by 
petition  of  either  party,  to  inquire  into  the  validity  of  any  mar- 
riage, and  might  declare  any  marriage,  contrary  to  the  marriage 
act,  or  any  second  marriage,  the  first  subsisting,  null  and  void. 
This  law,  as  it  would  seem,  may  now,  since  the  abolition  of  the 
general  court,  on  proper  application,  be  executed  by  a  county 
court.  This  court  has  been  clothed  with  no  such  authority  to 
determine  tlie  validity  of  a  contract  of  marriage ;  but,  by  virtue  of 
its  general  jurisdiction  in  matters  of  fraud  affecting  contracts,  it 
would  seem,  that,  considering  marriage  as  a  mere  civil  contract,  it 
may,  at  the  instance  of  either  party,  declare  a  marriage  to  be  null 
and  void,  which  has  been  procured  by  abduction,  terror  and 
fraud,  (p) 

In  England,  the  validity  of  a  marriage  which  is  not  absolutely 
void  but  merely  voidable,  can  only  be  drawn  in  question  and  deter- 
mined, in  a  suit  instituted  for  that  purpose,  in  the  ecclesiastical 
court.  But,  as  by  the  death  of  the  husband,  or  the  wife,  the  mar- 
riage is  at  an  end,  so  any  then  depending  suit,  which  may  have 
been  instituted  during  their  lives  for  that  purpose,  is  thereby  im- 
mediately abated,  and  cannot  be,  in  any  way,  revived  or  further 
prosecuted ;  nor  can  any  other  judicial  proceeding  be  thereafter 
instituted,  in  the  ecclesiastical  courts  or  elsewhere,  for  the  purpose 
of  declaring  a  marriage,  which  has  been  thus  terminated  by  the 
death  of  either  party,  to  have  been  null  and  void,  for  the  purpose 
of  bastardizing  the  issue  of  such  marriage,  or  barring  the  husband 
of  his  courtesy,  or. the  widow  of  her  dower ;  nor  can  any  one,  by 
any  judicial  proceeding  be  bastardized  after  his  death,  who  had 
carried  the  reputation  of  legitimate  during  his  life  ;  because  wrongs, 
and  personal  defects  die  with  the  individual ;  and  the  peace  of 
families  and  the  nature  of  the  testimony  by  which  alone  pedio-rees 
are  capable  of  being  traced,  in  cases  trhere  a  party  makes  title  by 

(/i)  Utterson  v.  Tewsh,  Fergusson's  Rep.  23 ;  Mrs.  Levett's  Case,  Ferg.  Rep. 
appen.  note  G.  3S2. — (0)  February  1777,  ch.  12,  3.  15. —  {p)  Portsmouth  v.  Ports 
mouth,  1  Hag.  Rep.  355 ;  In  matter  of  Fust,  1  Cox.  418 ;  Ex  parte  Turing,  1  Ves. 
&  Bea.  140  ;  Ferlat  v.  Gojon,  1  Hopk.  478. 


484  FORNSHILL  v.  MUKKAY. 

descent,  require  that  there  should  be  a  limitation  beyond  which  the 
institution  of  any  judicial  proceeding  for  the  purpose  of  trying  the 
validity  of  any  marriage  or  the  legitimacy  of  any  person  ought  not 
to  be  allowed. (y)  If  these  principles  be  correct,  and  as  entirely 
applicable  here,  under  different  forms  of  judicial  proceeding,  as  in 
England,  it  follows,  that  there  can  now,  after  the  death  of  Mary,  be 
no  judicial  proceeding  had  to  declare  her  second  and  third  mar- 
riages, with  Davidson  and  with  Fulton,  void  for  the  purpose  of 
bastardizing  her  issue  by  either  of  them. 

But  the  issue  oi Mary  by  her  second  and  third  maniages,  which 
were  absolutely  void,  not  merely  voidable,  are  here  claiming  as  par- 
ties to  this  suit;  and  found  their  title  to  recover  materially  and 
essentially  upon  the  validity  of  those  marriages,  and  their  own  legiti- 
macy as  the  fruit  of  them.  In  all  such  cases,  where  a  party  claims  as 
heir  or  next  of  kin,  and  his  own  legitimacy,  or  that  of  the  deceased 
under  whom  he  claims,  is  thus  necessarily  involved,  and  put  in  issue, 
it  never  has  been  questioned,  that  the  court  might  inquire  into  and 
decide  upon  the  validity  of  the  marriage,  or  the  fact  of  legitimacy. 
This  has  been  often  done  in  England, (?•)  and  has  also  been 
allow^ed  by  the  courts  of  this  state  ;(s)  because,  wherever  the 
validity  of  a  marriage  or  the  legitimacy  of  a  party  forms  a  com- 
ponent part  of  the  matter  in  controversy,  it  becomes  indispens- 
ably necessary,  that  the  court  should  inquire  into  and  deter- 
mine upon  that  fact,  as  well  as  every  other  part  of  the  case ;  for 
otherwise  it  would  be  to  suppose  a  suit  brought  before  a  court, 
which  had  not  a  capacity  to  try  the  cause  of  action. (^)  And  upon 
that  ground,  although  it  is  perfectly  well  settled,  that  the  Court  of 
Chancery  has  no  criminal  jurisdiction  whatever,  and  is  in  its  insti- 
tution and  forms  of  procedure  absolutely  civil,  yet  if  a  bill  be  fded 
in  it  for  the  purpose  of  setting  aside  a  deed  or  to  be  relieved  against 
a  will  on  the  ground  of  fraud,  the  instrument  complained  of  may 
be  shewn  to  be  a  forgery :  and  the  fact  of  forgery  may,  when  thus 
incidentally  involved,  be  determined  and  relief  given,  founded  upon 
a  criminal  fact,  although  it  w^ould  be  altogether  improper  for  it 
directly  io  decide  upon  any  such  question  upon  a  criminal  charge,  (if) 

{q)  Co.  Litt.3.3;  1  Hall.  Const.  Hist.  Eng.  395;  Kenn's  case, 7  Co.  142;  Hinks  v. 
Harris,  4  Mod.  182  ;  Hemming  v.  Price,  12  Mod.  432  ;  Haydon  v.  Gould,  1  SaJk.  119; 
Brownsvvord  v.  Edwards,  2  Ves.  245 ;  Elliott  w*  Gurr,  2  Phill.  16. — (r)  Alleyne  v.  Grey, 
2  Salk.  437;  Mace  v.  Cadell,  Cowp.  233;  Stark.  Evi.  4  pt.  218,  931.— (s)  Chesel- 
dine  v.  Brewer,  1  H.  k  McH.  152 ;  Ferlat  v.  Gojon,  1  Hop.  494.— (<)  1  Bac.  Abr.  571. 
(«)  B;irnesly  v.  Powel,  1  Ves.  120,  287;  Stace  v.  Mabbot,  2  Ves.  .553;  Duntze  v. 
Levett,  Fergusson's  Rep.  C3;  Stark.  Ev.  4  pt.  931 ;  Peake  v.  Highiield,  1  Russ.  560. 


FORNSHILL  i'.  MURRAY.  485 

It  appears,  that  the  first  marriage  of  Mmy  with  John  Lewis  was 
legally  had  and  solemnized  in  Ireland ;  hence,  according  to  the  law 
of  nations,  it  must  be  held  to  be  a  valid  marriage  here  ;  for  otherwise 
the  rights  of  mankind  w^ould,  in  this  respect,  be  in  a  most  precarious 
and  uncertain  condition. (i')  And  consequently  the  subsequent 
marriages  of  Mary  in  Maryland  with  Davidson,  and  after  his  death 
with  Fulton,  while  her  husband  John  Lewis  was  alive,  must  be 
considered  as  utterly  void. 

When  a  question  of  legitimacy  becomes  thus  involved  in  a  con- 
troversy in  a  court  of  chancery,  it  is  said  to  be  usual  to  make  up 
an  issue,  and  have  the  matter  tried  by  a  juiy  who  are  the  proper 
judges  of  fact.(i^)  But  it  is  not  indispensably  necessary,  in  any 
case,  that  the  Chancellor  should  have  any  fact  determined  by  a  jury. 
It  is  only  when  he  entertains  a  reasonable  doubt  as  to  the  fact,  and 
when  it  depends  on  evidence  the  weight  of  which  can  be  better 
estimated  by  a  jury,  or  where  the  testimony  is  very  obscure  and 
contradictory,  if  he  thinks  fit  that  the  Chancellor,  for  the  informa- 
tion of  his  own  conscience,  may  have  recourse  to  this  auxiliary 
mode  of  obtaining  it.(x)  But  in  this  case  the  proof  is  so  clear  and 
demonstrative,  that  there  is  not  the  smallest  room  for  a  doubt  upon 
the  subject;  therefore  I  hold  it  to  be  my  duty  to  pronounce  an 
immediate  decree. 

The  proofs  clearly  establish  the  fact,  that  the  late  Mary,  the 
mother  of  the  plaintiffs,  had  been,  long  previously  to  their  birth, 
legally  married,  and  was  then  the  lawful  wife  of  a  certain  John 
Lewis,  who  at  the  time  of  the  marriage,  and  continually  ever  since, 
has  resided,  and  is  now  living  in  Ireland.  And  consequently  these 
plaintiffs,  who  were  all  born  in  Marj^land  many  years  after  their 
mother  came  to  and  resided  in  this  state,  are  all  of  them  illegiti- 
mate ;  and,  as  such,  they  cannot  take  as  her  legal  representatives, 
or  as  the  next  of  kin  of  the  late  Henry  Somervell.  The  act  of 
1825,  ch.  156,  has  no  retrospective  operation,  and  therefore  cannot 
affect  this  case. 

Whereupon  it  is  Decreed,  that  the  bill  of  complaint  be  dismissed 
with  costs  to  be  taxed  by  the  register. 


(v)  Roach  V.  Garvan,  1  Yes.  159 ;  Herbert  v.  Herbert,  3  Phill.  58 ;  Duntze  v.  Levett, 
Ferg.  Rep.  63 ;  Edmonstone  v.  Lockhart,  Ferg.  Rep.  168;  Butler  v.  P^orbes,  Ferg. 
Rep.  209;  Herbert  v.  Herbert,  2  Hag.  Cons.  Rep.  263;  Ruding  y.  Smith,  2  Hag. 
Cons.  Rep.  371.— (w)  Revel  r.  Fox,  2  Ves.  270;  Read  v.  Passer,  1  Esp.  Rep.  213. 
{X)  Short  V.  Lee,  2  Jac.  &,  Walk.  496 ;  Peake  v.  Highfield,  1  Russ.  560. 


486  EST:EP  r.  WATKINS. 


ESTEP  V.  WATKINS. 

A  purchased  of  B  a  tract  of  land,  the  legal  title  to  be  conveyed  when  the  purchase 
money  was  paid  ;  for  which  he  gave  his  bond :  after  which  B  died,  and  his  widow 
had  her  dower  in  the  land.  Held,  that  A  was  entitled  to  a  deduction  from  his  bond 
to  the  amount  of  the  value  of  the  widow's  dower. 

When  a  case  is  set  down  for  final  hearing  on  hill  and  answer,  without  replication,  all 
the  facts  set  forth  in  the  answer  are  taken  to  be  true. 

Everj-  decree  stands  for  what  it  purports  to  be  until  regularly  revised  or  reversed. 

The  case,  as  set  forth  in  the  bill,  must,  at  the  final  hearing,  appear  to  be  such  an  one 
as  falls  within  the  jurisdiction  of  a  court  of  chancery. 

The  assignee  of  a  bond  takes  it  subject  to  all  equities,  whether  he  has  notice  of  them 
or  not. 

This  bill  was  filed  on  the  21st  of  December  1827,  by  Rezin  Estep, 
against  Rachel  H.  Watkins,  Benjamin  Waikins,  and  John  Claytor. 

It  is  stated  in  the  bill,  that  Charles  D.  Hodges,  being  seized  of 
certain  parcels  of  land,  by  his  bond  with  a  collateral  condition, 
contracted,  in  consideration  of  the  sum  of  $3,000  to  convey  them 
to  this  plaintiff,  who  to  secure  the  payment  of  that  amount  as  the 
purchase  money,  gave  his  bond  to  Hodges,  who  assigned  it  to 
Benjamin  Hodges,  who  assigned  it  to  JYicholas  Watldns  of  Thomas, 
to  whom  this  plaintiff  made  assignments  of  sundry  bonds  and  notes 
which  he  Watkins  received  as  payment  of  this  plaintiff's  bond ; 
that  afterwards  Charles  D.  Hodges  died  intestate,  leaving  a  widow 
Elizabeth  who  was  entitled  to  dower  in  the  lands,  and  six  children, 
Elizabeth  the  wife  of  John  Randall,  Mary  Ann,  Lucinda,  Margaret, 
Ellen,  and  Charles,  his  heirs  at  law ;  that  the  widow  married  this 
defendant  Claytor;  that  this  plaintiff  on  the  15th  of  Februar}'  1815, 
filed  his  bill  in  this  court  against  this  widow  with  her  husband 
Claytor,  and  these  heirs,  with  Benjamin  Hodges  and  JYicholas 
Watkins  of  Thomas,  to  obtain  a  title  to  the  lands  he  had  so  pur- 
chased, which  bill  the  defendants  thereto  answered  ;  and  the  case 
having  been  submitted,  it  was  on  the  22d  of  May  1815  decreed, 
that  this  plaintiff  should  pay  two-thirteenth  parts  of  three  thousand 
dollars  to  Johii  Claytor  and  Elizabeth  his  wife  in  lieu  of  her  dower 
in  those  lands ;  and,  on  the  payment,  by  this  plaintiff,  to  JYicholas 
Watkins  of  Thomas,  of  the  balance  appearing  to  be  due  on  this 
plaintiff's  bond,  after  deducting  the  two-thirteenth  parts  allowed  in 
lieu  of  dower,  that  the  heirs  of  the  late  Charles  D.  Hodges  should 
convey  the  lands  to  this  plaintiff;  that  JSIcholas  Watkins  brought 
suit,  in  the  name  of  the  administrator  of  the  late  Charles  D.  Hodges, 


ESTEP  V.  WATKIXS.  437 

on  the  bond  so  given  by  this  plaintiff;  and,  in  September  1817, 
recovered  judgment  for  the  whole  amount  thereof;  that  this  plain- 
tiff paid  to  JMcholas  Watkins  the  full  amount  due  to  him,  after 
deducting  the  two-thirteenths  awarded  to  Claytor  and  wife,  which 
he  also  paid  according  to  the  terms  of  the  decree ;  that  JMcholas 
Watkins  is  dead  intestate,  and  administration  on  his  estate  had 
been  granted  to  these  defendants  Rachel  H.  Watkins  and  Benjamin 
Watlcins,  who  have  revived  the  judgment  recovered  by  their 
intestate,  to  be  released  on  the  payment  of  $892  75  w'ith  interest 
from  the  2d  of  October  1827  and  costs;  upon. which  they  threat- 
ened to  issue  execution.  V^hereupon  the  plaintiff  prayed  for  an 
injunction  to  stay  proceedings  at  law,  &c. ;  which  was  granted  as 
prayed. 

The  defendant  Claytor  by  his  answer  admitted  the  allegations 
and  facts  set  forth  in  the  bill  so  far  as  he  was  concerned. 

The  defendants  Rachel  H.  Watlcins  and  Benjamin  Watkins  put 
in  their  joint  answer,  in  which  they  also  admitted  the  facts  and  cir- 
cumstances set  forth  in  the  bill.     But  they  averred,  "  that  the  said 
bond  was  assigned  to  their  intestate  during  the  lifetime  of  the  said 
Charles  D.  Hodges ;  that  their  intestate  paid  the  full  amount  due  on 
the  bond  at  the  time  of  the  assignment  to  him ;  that  he  had  no  know- 
ledge of  any  deduction  to  be  made  therefrom  in  any  event  whatever : 
and  these  defendants  do  positively  den}^,  that  their  intestate  received 
bonds  or  notes  in  payment  of  the  aforesaid  bond ;  but  they  aver, 
that  the  bonds  and  notes  which  he  did  receive  were  received  to  be 
applied  when  collected  towards  the  payment  of  the  said  bond  ;  and 
that  their  intestate  did,  after  due  diligence  in  the  collection  of  the 
said  bonds  and  notes,  apply  what  had  been  so  collected  to  the  dimi- 
nution of  the  amount  due  on  the  bond,  and  credit  was  therefore 
given  to  the  complainant.      These  defendants  also  aver,  that  the 
complainant's  bill,  mentioned  in  his  present  bill,  to  which  their  intes- 
tate w-as  a  defendant,  was  answered  by  him  under  a  full  belief  and 
with  an  understanding  by  him  and  the  complainant,  that  the  said  suit 
should  not  affect  the  interest  of  their  intestate  in  the  aforesaid  bond, 
and  should  only  operate  to  enable  the  complainant  to  obtain  a  con- 
veyance for  the  land  he  had  purchased ;  that  their  intestate  relying 
on  this  understanding,  and  believing  his  interest  was  not  to  be 
damnified,  employed  no  counsel  nor  made  any  defence,  but  suffered 
the  counsel  for  the  complainant  to  draw  his  answer,  and  the  pro- 
ceedings to  be  as  hastily  determined  as  possible ;  and  that  when 
the  decree  was  passed  in  the  said  case,  it  was  not  considered  as  at 


488  ESTEP  V.  WATKINS. 

all  affecting  the  interests  of  their  intestate,  either  by  him  or  by  the 
complainant.  These  defendants  further  aver,  that  long  subsequent 
to  the  passage  of  the  decree  aforesaid,  their  intestate,  wishing  to  close 
this  transaction  relative  to  the  bond  aforesaid,  brought  suit  against 
the  complainant ;  that  the  complainant,  aware  of  the  understanding, 
previously  here  stated,  and  of  his  liability  to  their  intestate,  gave 
their  intestate  a  judgment  for  the  amount  then  due  on  the  bond  on 
his  allowing  all  the  credits  which  the  complainant  was  then  entitled 
to.  These  defendants  also  state,  that  at  the  April  term  of  Ann  Arun- 
del county  court,  their  intestate,  in  order  to  recover  the  balance 
then  due  on  the  aforesaid  bond,  instituted  proceedings  to  revive  the 
judgment  aforesaid  against  the  complainant;  and  that  in  conse- 
quence of  the  death  of  their  intestate  pending  the  proceedings  afore- 
said, these  defendants  appeared  to  the  said  suit,  after  which  such 
proceedings  were  had,  that  at  the  October  term  of  the  said  court 
for  1827,  a  judgment  was  obtained  against  the  complainant  in 
favour  of  the  defendants  for  the  amount  then  ascertained  to  be  due. 
These  defendants  do  positively  deny  that  their  intestate  in  receiving 
the  sums  of  money  in  part  payment  of  the  bond  aforesaid,  ever  did 
receive  the  same  as  a  satisfaction  thereof,  or  ever  did  admit  that  the 
bond  was  paid;  but  on  the  contrary  always  considered  the  com- 
plainant liable  to  him  for  the  amount  of  the  last  aforesaid  judg- 
ment ;  and  that  the  complainant  himself  ever  did,  until  a  short  time 
before  the  judgment  aforesaid  was  about  to  be  jevived,  consider 
himself,  as  these  defendants  believe,  so  liable  to  their  intestate." 

Upon  a  motion  to  dissolve  the  injunction  on  the  coming  in  of 
these  answers,  it  was  continued  until  the  final  hearing  or  further 
order.  After  which  the  case  was  set  down  for  final  hearing  by  the 
plaintiff  on  the  bill  and  answers;  and  the  solicitors  of  the  parties 
were  fully  heard. 

6th  August,  1828. — Bland,  Chancellor. — This  case  having  been 
set  down  for  hearing  on  the  bill  and  answers  alone,  without  any 
general  replication, — the  answers  must  therefore  be  taken  to  be  true 
in  every  particular,  as  well  as  to  the  matters  alleged  by  way  of 
avoidance  as  to  those  directly  responsive  to  the  bill.  That  is,  the 
defendants  are  to  be  allowed  the  benefit  of  exeryfact  advanced  by 
them  as  a  defence  in  their  answers,  as  fully  as  if  it  had  been  put  in 
issue  by  the  plaintiff's  general  replication,  and  the  defendants  had 
established  it  by  proof.(a) 

(a)  3  Blac.  Com.  448. 


ESTEP  V.  WATKIXS.  439 

But  these  ridministrators  rest  their  defence  on  the  fact,  that 
tliere  was  "  an  understanding  by  him,  (their  intestate,)  and  the 
comphiinant,  that  the  said  suit,  (in  which  the  decree  of  the 
22d  of  May  18]  5,  was  passed,)  should  not  affect  the  interest 
of  their  intestate  in  the  aforesaid  bond,  and  should  only  operate  to 
enable  the  complainant  to  obtain  a  conveyance  for  the  land  he  had 
purchased."  In  other  words  they  admit,  that  the  decree  of  the22d 
May  1815,  as  it  stands_,  is  a  sufficient  basis  for  the  plaintiff's 
equity ;  but  they  attempt  to  circumscribe  its  operation  by  setting 
up  a  previous  understanding  or  agreement  of  the  parties  to  it,  as 
to  what  was  intended  to  be  its  extent  and  effect.  But  no  decree 
can  be  thus  collaterally  affected  or  impeached.  Every  decree  stands, 
and  must  be  allowed  to  stand,  for  what  it  purports  to  be  on  its  face, 
until  it  has  been  revised  or  reversed  in  a  solemn  and  proper  man- 
ner.(6)  Therefore,  rejecting  this  ground  of  the  defence,  as  being 
utterly  inadmissible,  even  supposing  the  fact  of  the  alleged  under- 
standing to  be  true,  there  is  nothing  in  the  answers  which  is  at  all 
at  variance  with  the  case  presented  by  the  bill. 

It  is  certainly  true  as  urged  by  the  defendants'  solicitor,  that  even 
at  the  hearing,  the  plaintiff's  case,  as  stated  by  himself,  must  be 
shewn  to  have  in  substance,  or  in  some  essential  bearing  of  it,  such 
a  character  as  will  confer  jurisdiction  on  a  court  of  chancery ;  it 
must  appear  to  be  an  equitable  as  contradistinguished  from  a  mere 
legal  cause  of  action.  The  bill  must  itself  shew  why  it  was  neces- 
sary, or  allowable  for  the  plaintiff  to  leave  the  ordinaiy  legal  tribu- 
nals and  come  into  a  court  of  chancery  to  seek  relief.  It  seems  to 
have  been  formerly  understood,  that  if  it  appeared"  upon  the  face 
of  the  bill,  that  the  plaintiff's  remedy  was  properly  at  law, — as 
where  the  bill  was  for  the  recovery  of  a  debt  due  by  bond, — ^if  the 
defendant  answered  and  confessed  the  bond,Jie  could  not  demur  to 
the  relief;  because,  admitting  the  debt,  he  ought  to  pay  it,  and  not 
proceed  to  litigate  it  in  either  forum ;  or  if  the  plaintiff  was  pro- 
ceeding for  the  recoveiy  of  damages,  the  defendant  might  demur ; 
because  the  court  could  not  settle  the  damages  :  but  if  he  answered, 
he  could  take  no  advantage  of  it  at  the  hearing:'  for  having:  sub- 
mitted  to  the  jurisdiction  of  the  court,  it  would  have  the  quantum 
of  damages  adjusted  in  a  feigned  action  at  law.(c)  The  rule  now 
however  is,  that  if  the  defendant  could  have  demurred  to  the  bill, 

(b)  2  Mad.  Chan.  537;  Barney  v.  Patterson,  6  H.  &  J.  204;  (c)  Gilb.  For.  Kom. 
51,  53;  North  f.  Strafford,  3  P.  Will.  150;  Pickering's  case,  12  Mod,  171. 

62 


490  ESTEP  V.  WATKINS. 

because  of  its  not  presenting  a  case  of  an  equitable  character,  but, 
instead  of  doing  so,  has  answered  it,  the  court  will  not  make  a 
decree  for  relief  at  the  final  hearing,  (c?) 

The  case  exhibited  by  this  bill  is,  however,  one  of  which  a  court 
of  chancery  may  properly  take  cognizance.  It  is  admitted  on  all 
hands,  that  the  assignee  of  a  bond  takes  it  subject  to  all  the  equity 
to  which  the  obligor  is  entitled,  whether  he  has  notice  of  that  equity 
or  not.  The  contingency  which  gave  rise  to  this  obligor's  equity 
w^as  of  such  a  nature,  that  on  its  happening,  he  could  only  obtain 
the  relief  to  which  he  was  entitled  in  a  court  of  equity. (e)  He 
therefore  came  here  and  obtained  relief  accordingly,  even  against 
the  assignee  and  the  then  holder  of  his  bond,  the  intestate  of  the 
only  two  of  these  defendants  who  now  resist  his  equity.  After 
which  that  assignee,  availing  himself  of  the  legal  form  of  his  claim, 
obtained  a  judgment  at  law,  which  this  plaintiff,  from  the  peculiarly 
equitable  nature  of  his  defence,  was  unable  to  prevent.  I  am  there- 
fore of  opinion  that  this  injunction  must  now  be  made  perpetual, 
as  well  because  this  court  should  be  consistent  with  itself,  as 
because  this  plaintiff  should  have  assured  to  him  the  full  benefit  of 
tbat  to  which  he  has  been  declared,  by  the  decree  of  the  22d  May 
1815,  to  be  equitably  entitled. 

Whereupon  it  is  Decreed,  that  the  injunction  heretofore  granted 
in  this  case  be  and  the  same  is  hereby  made  perpetual,  and  that  the 
said  defendants  pay  to  the  said  complainant  his  costs,  to  be  taxed 
by  the  register. 

The  defendants  appealed,  and  the  Court  of  Appeals  affirmed  the 
decree. 


{d)  Barker  v.  Dacie,  6  Ves.  686 ;  Penn  v.  Baltimore,  1  Ves.  446 ;  Brace  v.  Taylor, 
2  Atk.  253 ;  Hovenden  v.  Annesley,  2  Scho.  &  Lefr.  633 ;  Utterson  v.  Mair,  2  Ves. 
jun.  97 ;  Brooke  v.  Hewitt,  3  Ves.  255;  Kemp  v.  Pryor,  7  Ves.  245;  Pig'got  v.  Wil- 
liams, 6  Mad.  95 ;  Cover  v.  Chrislje,  2  H.  &  J.  67 ;  Taylor  v.  Ferguson,  4  H.  &  J.  46 ; 
Pollard  V.  Patterson,  3  Hen.  &  Mnn.  85 ;  Yancy  v.  Fenwick,  4  Hen.  &  Mun.  423 ; 
Martin  v.  Spier,  1  Hay  w.  370 ;  Hart  v.  Mallett,  2  Hayw.  136 ;  Dickens  v.  Ashe, 
2  Hayw.  176.— (c)  Mole  v.  Smith,  1  Jac.  &  Walk.  645. 


MORETON  V.  HARRISON.  491 


MORETON  V.  HARRISON. 

A  defendant  may,  at  the  same  time,  plead  several  distinct  pleas  in  bar,  in  equity  as 
well  as  at  law.    . 

If  a  defendant  pleads  the  statute  of  limitations,  and  there  be  any  allegations  in  the 
bill  of  partial  payments,  &c. ;  which,  if  true,  would  take  the  case  out  of  the  statute, 
the  defendant  must,  by  an  answer  in  support  of  his  plea,  deny  such  allegations. 

A  plea  may,  without  replication,  be  set  down  to  obtain  the  judgment  of  the  court  as 
to  its  formality  and  sufficiency. 

The  vendor's  lien,  to  secure  the  payment  of  the  purchase  money,  is  an  incident  of 
every  contract  for  the  sale  of  real  estate ;  unless  such  lien  be  waived  or  relinquish- 
ed.— A  vendor's  lien  can  only  be  barred  by  a  lapse  of  tw'enty  years. — An  admission 
by  the  vendee,  within  the  twenty  years,  that  the  purchase  money  has  not  been  paid, 
sustains  and  continues  the  vendor's  lien. 

This  bill  was  filed  on  the  29th  of  NoA^ember  1825,  by  Joseph 
Moreton,  administrator  de  bonis  7ion  of  John  Westeneys,  and  James 
I.  Pattison  administrator  de  bonis  no?i  of  James  Pattison,  aerainst 
Walter  Harnson. 

The  bill  states,  that  the  late  James  Pattison  being  seized  in  fee 
simple  of  a  tract  of  land,  called  Hunfs  Mount,  the  one  half  of 
which  he  held  to  his  own  use,  and  the  other  half  in  trust  for  the  use 
of  the  late  John  Westeneys  ;  that  they  sold  it  in  the  year  1787,  for 
the  sura  of  ,£640,  to  the  defendant,  who  stipulated  by  bond  to  pay 
for  it  before  the  first  of  September  1790 ;  that  they  delivered  the 
possession  of  it  to  the  defendant  on  the  24th  of  December  1787, 
who  has  held  and  enjoyed  it  ever  since ;  that  a  small  part  of  the 
purchase  money  had  been  paid,  for  which  credit  had  been  given ; 
and,  that  there  remained  due,  at  the  time  of  the  death  of  the  ven- 
dors, Pattison  and  Westeneys,  the  sum  of  ^£555,  for  principal  and 
interest,  which  has  not  been  since  paid ;  and  which  the  defendant 
had  failed  or  refused  to  pay. 

Whereupon  the  bill  prayed,  that  the  defendant  might  be  ordered 
to  account  with  the  plaintiffs  concerning  the  balance  of  the  pur- 
chase money,  and  be  compelled  to  satisfy  the  same ;  that  is  to  say, 
one  half  to  the  plaintiff  Jlio re/on,  and  the  other  half  to  the  plaintiff 
Pattison  ;  or  in  default  thereof,  that  the  land  be  sold :  and  that  the 
plaintiffs  might  have  such  further  and  other  relief  in  the  premises 
as  might  be  consistent  with  the  principles  of  equity. 

On  the  first  of  July  1826,  the  defendant  put  in  the  following 
pleas  on  oath  ;  but  without  any  answer  whatever. 

"  The  plea  of  Walter  Harrison  of  Ann  Arundel  county  to  the 


492  JVIORETON  V.  HARRISON. 

bill  of  complaint  of  Joseph  Moreton,  administrator  de  bonis  non  of 
John  Westcneys  and  James  I.  Pattison,  administrator  de  bonis  non 
of  James  Pattison. 

"  This  defendant,  by  protestation  to  all  the  discoveries  and  relief 
in  and  by  the  said  bill  sought  from  or  prayed  against  this  defendant, 
for  plea  unto  the  said  bill,  saith ;  That  if  John  Westeneys  deceas- 
ed and  James  Pattison  deceased,  or  the  complainants,  as  adminis- 
trators de  bonis  non  of  them,  the  said  John  Westeneys  and  James 
Pattison  in  the  bill  named,  ever  had  any  cause  of  suit  against  this 
defendant,  for  or  concerning  any  of  the  matters  or  transactions  in 
the  said  bill  of  complaint  mentioned,  the  same  did  arise  above 
twelve  years  before  filing  the  said  bill,  and  above  twelve  years 
before  serving  this  defendant  with  any  process  to  appear  to  answer 
the  same. 

"And  this  defendant  further  for  plea  says  and  doth  aver,  that 
this  defendant  did  not  at  any  time  within  twelve  years  before  filing 
the  complainants'  said  bill  of  complaint,  nor  within  twelve  years 
befoi-e  this  defendant  was  served  with  process  to  appear  and  answer 
thereto,  ever  promise  and  agree,  or  in  any  manner  bind  himself  to 
pay  or  satisfy  the  said  John  Westeneys  and  James  Pattison  in  their 
lives,  or  the  said  complainants  as  administrators  de  bonis  no7i  of  the 
said  John  Westeneys  and  James  Pattison  the  sum  of  money  men- 
tioned and  expressed  ,iii  the  bond  marked  exhibit  A,  filed  by  the 
complainants  with  their  said  bill,  and  referred  to  by  them ;  or  any 
sum  of  money,  for  or  concerning  any  of  the  matters,  or  transactions 
in  the  complainants'  said  bill  of  complaint  charged  or  alleged.  And 
therefore  this  defendant  pleads  the  act  of  The  General  Assembly 
of  the  Province  (now  State  j  of  Maryland,  passed  at  a  session  of 
Assembly  begun  and  held  at  the  city  of  Annapolis,  the  twenty- 
sixth  day  of  April,  in  the  year  of  our  Lord  one  thousand  seven 
hundred  and  fifteen,  entitled  "  An  Act  for  liimitation  of  certain 
actions,  and  for  avoiding  suits  at  law" — and  prays  the  benefit  of 
the  said  act. 

"  All  which  matters  this  defendant  doth  aver  and  plead  in  bar 
of  the  complainants'  said  bill,  and  of  the  complainants'  pretended 
demand  for  which  they  seek  to  be  relieved  by  their  said  bill.  And 
this  defendant  prays  hence  to  be  dismissed  with  his  reasonable  costs 
in  this  behalf  Avrongfully  sustained."  ■ 

These  pleas  were  submitted,  without  replication,  on  the  notes 
of  the  solicitors  of  the  parties,  to  take  the  opinion  of  the  court 
on  their  sufficiency. 


MORETON  V.  HARRISON.  493 

22d  December,  1826. — Bland,  Chancellor. — These  pleas  have 
been  set  down  for  hearing  without  a  replication  ;  consequently,  the 
sole  object  is  to  obtain  the  judgment  of  the  court  on  their  suffi- 
ciency as  they  stand  at  this  stage  of  the  proceedings.  The  bill 
charges,  in  substance,  not  only,  that  the  defendant  for  a  valuable 
consideration  became  indebted  to  the  intestates  of  the  plaintiffs  ;  but 
it  also  goes  on  to  allege,  that  the  defendant  afterwards  paid  a  part  of 
the  debt;  and  that  although  he,  "well  knows  and  has  repeatedly 
admitted  the  said  sum  of  money  and  interest  to  be  due,  and  has 
promised  at  various  times  to  pay  the  same,"  yet  he  has  not  done  so. 

It  is  perfectly  well  settled,  that  a  partial  payment  is  such  an  ac- 
knowledgment of  the  existence  of  the  debt  as  will  take  the  case 
out  of  the  statute  of  limitations.  But  in  this  case,-  the  partial 
payment  referred  to  was  made  on  the  16th  of  October  1793,  and 
this  siiit  was  not  instituted  until  the  29th  of  November  1825,  a 
lapse  of  more  than  thirty  years.  This,  therefore,  is  clearly  not  such 
an  allegation,  as  if  admitted  to  be  true,  would  take  the  case  out  of 
the  statute  of  limitations.  But  the  subsequent  promises,  charged 
to  have  been  made  by  the  defendant,  certainly  would  prevent  the 
statute  from  being  applied  as  a  bar  if  admitted  to  be  true. 

It  is  an  established  principle,  that  wj^ere  any  allegation  of  the 
bill  would  avoid  the  bar  created  by  the  statute,  such  allegation 
must  be  specially  denied  by  an  answer  in  support  of  the  plea ;  for 
otherwise,  it  will  be  taken  as  true,  and  the  plea  can  then  be  no 
bar ;  because  it  will  appear  upon  the  face  of  the  proceedings  to 
have  been  sufficiently  avoided.  There  is,  in  this  case,  no  answer 
denying  the  subsequent  admissions  and  promises  charged  to  have 
been  made  ;  consequently,  they  must  be  taken  for  true,  and  are 
an  ample  avoidance  of  the  pleas ;  which,  therefore,  can  be  of  no 
avail  whatever. 

In  the  case  of  Morgan  v.  Roberts  the  defendant  put  in  three 
pleas.  No  objection  was  made  on  the  ground,  that  a  defendant 
could  not  in  equit}",  as  well  as  at  common  law  under  the  statute, 
be  allowed  to  plead  two  or  more  pleas  in  his  defence ;  and  I  sus- 
tained two  of  them,  and  overruled  the  third.  Since  then  ray 
attention  has  been  particularly  called  to  this  point.  This  matter 
in  England  seems  to  be  not  yet  finally  settled. (a) 

At  common  law,  in  almost  all  criminal  cases,  the  accused  is 

(a)  Whilbread ». Brockhurst,  IBro.  C.  C.  417;  2  Ves.  &  Bea.  153,  note;  Gibson 
v.  Whitehead,  4  Mad.  241 ;  Van  Hook  r.  Whitlock,  3  Paige,  419;  Beam.  PI.  Eq.  14  ; 
Mitf.  PI.  296  ;  Wyat's  Pra.  Reg.  2S0. 


494  MORETON  V.  HARRISON. 

allowed  to  plead,  at  the  same  time,  two  or  more  pleas  in  bar  ;(6) 
and,  in  all  civil  cases,  the  defendant  is  allowed,  by  the  statute  of 
Ann,  which  has  always  been  the  received  law  here,  to  plead  double. 
Equity  follows  the  law  ;  and  the  peculiarly  liberal  principles  of  our 
code  seem  to  require,  that  this  court  should  not  be  more  technical, 
or  less  willing  than  a  court  of  common  law,  to  receive  the  defend- 
ant's defence  in  any  number,  or  variety  of  forms  deemed  necessary 
by  him,  to  render  it  completely  effectual-;  for  the  reason  why  du- 
plicity should  not  be  allowed  in  the  same  plea,  does  not  apply  as 
against  several  distinct  pleas. (c)  Although  a  plea  is  not  the  only 
mode  of  defence  in  chancery ;  and  there  may  not  be  as  great  a 
necessity  to  allow  a  defendant  to  plead  double  in  equity  as  at  law ; 
yet  it  is  sufficient,  that  justice  may  in  most  instances  be  promoted 
by  it ;  and  that  no  positive  mischief  is  likely  to  arise  from  it  in 
equity  more  than  at  law.  Long  experience  has  satisfied  every  one 
of  its  utility  at  law ;  and  there  is  no  apparent  sound  reason  which 
forbids  the  adoption  of  a  similar  practice  in  courts  of  equity.(rf) 


(6)  2  Hawk.  c.  23,  s.  128,  137;  2  Hale  PI.  Cro.  239,  248;  The  King  v.  Gibson, 
8  East,  107;  The  Commonwealth  i^  Myers,  1  Virg.  Ca.  188.— (r)  2  Mont.  Dig.  99, 100. 

(d)  1829,  ch.  220.— RiDGLEY  v.  Warfield.— This  bill,  filed  5th  May  1779,  states, 
that  the  plaintiff  and  defendant  defluce  their  title  to  certain  land  from  a  certain  Rich- 
ard Davis,  but  that  the  conveyance  from  one  of  the  sons  and  devisees  of  Davis  to  the 
defendant,  had  in  fact  conveyed  to  him  more  than  it  was  intended  and  meant  to 
convey.  Prayer,  that  the  defendant  might  be  confined  to  the  true  extent  of  the  giant, 
&c. — To  tliis  bill  the  defendant  presented  the  following  defence. 

The  pleas  and  demurrer  of  Seth  Warfield  to  the  bill  of  complaint  of  Henry 
Ridgley. — The  said  defendant  by  protestation,  not  confessing  or  acknowledging  all 
or  any  of  the  matters  or  things  in  and  by  the  said  bill  of  complaint  set  forth  and 
alleged  to  be  true,  in  STich  manner  and  form  as  the  same  are  therein  set  forth  ;  as  to 
so  much  and  such  part  of  the  said  bill,  which  seeks  a  discovery  or  relief  from  this 
defendant  relating  to  any  parol  contract,  or  agreement  made  or  supposed  to  be  made 
between  Thomas  Davis  and  Stephen  Steward,  in  the  said  bill  mentioned,  for  the  said 
tract  of  land  called  Davis's  Purchase,  or  any  part  thereof  different  or  variant  fiom  the 
deed  said  to  have  been  executed  in  the. said  bill,  on  or  about  the  twentj^-ninth  day  of 
November  seventeen  hundred  and  fifty-six,  by  the  said  Thomas  Davis  to  the  said 
Stephen  Steward ;  and  as  to  so  much  of  the  said  bill  which  seeks  a  discovery  or  relief 
from  this  defendant  relating  to  any  parol  contract  or  agreement  made  or  supposed  to 
be  made  between  the  said  Stephen  Steward  and  this  defendant  for  the  said  tract  of 
land  called  Davis's  Purchase,  or  any  part  thereof,  different  or  variant  from  the  deed  or 
conveyance  said  to  have  been  executed,  (in  the  said  bill,)  on  or  about  the  fourteenth 
day  of  December  seventeen  hundred  and  sixty -two,  by  the  said  Stephen  Steward  and 
Joshua  Davis  to  this  defendant :  He,  this  defendant,  doth  plead,  that  by  an  act  of 
Parliament,  made  in  the  twenty-ninth  year  of  the  reign  of  his  late  Majesty  King 
Charles  the  second,  entitled  an  Act  for  prevention  of  Frauds  and  Perjuries,  it  is, 
amongst  other  things,  enacted ;  that,  from  and  after  the  twenty-fourth  day  of  June 
sixteen  hunilrcd  and  seventy-seven,  no  action  shall  be  brought,  whereby  to  charge 


MOEETON  t'.  HARRISON.  495 

These  pleas,  in  the  first  place,  aver,  that  the  cause  of  action 
arose  above  twelve  years  before  the  institution  of  the  suit ;  and  then 

any  person  upon  any  contract  of  lands,  tenements  or  hereditaments,  or  any  interest 
in  or  concerning  them,  unless  the  agreement,  upon  which  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing  and  signed  by  the  party  to 
be  charged  therewith  or  some  other  person  thereunto  by  him  lawfully  authorized ;  as 
by  the  said  act  may  appear ;  and  this  defendant  avers,  that  neither  the  said  Thomas 
Davis,  nor  any  person  by  him  lawfully  authorized,  did  ever  make  or  sign  any  contract 
or  agreement  in  writing  for  the  sale  or  conveyance  of  the  said  tract  of  land  called 
Davis's  Purchase,  or  any  part  thereof,  to  the  said  Stephen  Steward  to  any  such  efiect, 
as  by  the  said  bill  is  suggested,  or  any  memorandum  or  note  in  writing  of  any  agree- 
ment whatsoever  for  or  concerning  the  said  premises,  or  any  part  tliereof ;  other  than 
or  different  from  the  said  deed,  alleged  in  the  said  bill  to  have  been  made  by  the  said 
Thomas  Davis  to  the  said  Stephen  Steward;  and  this  defendant  also  avers,  that 
neither  he,  the  said  defendant,  nor  any  person  by  him  lawfully  authorized,  did  ever 
make  or  sign  any  contract  or  agreement  in  wi-iting  with  the  said  Stephen  Steward 
respecting  the  said  tract  of  land  called  Davis's  Purchase,  or  any  part  thereof,  or  any 
memorandum  or  note  in  writing  of  any  agreement  whatever,  for  or  concerning  the 
said  premises,  or  any  part  or  parcel  thereof;  and,  therefore,  this  defendant  doth  plead 
the  said  act  of  parliament,  and  the  matters  aforesaid  in  bar  to  so  much  of  the  said  bill 
as  seeks  to  compel  the  defendant  to  execute  any  deed  or  conveyance  to  the  complain- 
ant of  the  aforesaid  premises,  or  of  any  of  them,  or  of  any  peirt  or  parcel  thereof 
pursuant  to  the  said  pretended  agreements  or  either  of  them ;  and  as  to  any  relief 
thereby  prayed  touching  the  said  agreements  or  either  of  them  ;  and  humbly  prays 
the  judgment  of  this  Honourable  Court  whether  he  shall  be  compelled  to  make  any 
further  or  other  answer  to  so  much  and  such  parts  of  the  said  bill  as  are  herein  before 
and  hereby  pleaded  unto  as  aforesaid. 

And  this  defendant  for  further  plea  unto  the  said  bill  saith,  that  if  the  complainant, 
or  any  of  those  from  under  whom  he  claims,  ever  had  any  cause  of  suit  for  or  con- 
cerning any  of  the  matters,  transactions,  or  things  in  the  said  bill  of  complaint 
mentioned,  (which  this  defendant  doth  in  no  sort  admit,)  the  same  did  accrue  or  arise 
above  twenty  )'ears  before  the  filing  the  complainant's  bill  of  complaint ;  and  above 
twenty  years  before  the  serving  this  defendant  with  any  process  to  appear  to  and 
answer  the  same,  during  all  which  time  the  said  Stephen  Steward,  and  all  those 
claiming  under  him  have  constantly  acquiesced  under  the  said  deed  or  conveyance 
alleged  to  have  been  made  to  him  by  the  said  Thomas  Davis ;  that  is  to  say,  from 
the  time  of  making  the  same  until  the  time  of  filing  the  compkiinant's  said  bill ; 
wherefore  this  defendant  doth  plead  the  act  of  parliament  or  statute  of  limitations 
made  in  the  twentj'-fii-st  year  of  king  James  the  first;  and  also  the  length  of  time  and 
acquiescence,  and  prays  tlie  benefit  of  the  same ;  all  which  matters  this  defendant 
doth  aver  and  plead  in  bar  of  the  complainant's  said  bill,  and  of  the  complainant's 
pretended  demands  for  which  he  seeks  to  be  relieved  by  the  said  bill. 

And  this  defendant  further  saith,  that  he  is  advised  by  his  counsel,  that  there  is 
good  cause  of  demurrer  to  the  said  bill,  and  that  there  is  no  matter  or  thing  in  the 
said  bill  contained  good  and  sufficient  in  law  to  call  tliis  defendant  in  question  in  this 
honorable  court  for  the  same  ;  but  that  there  is  good  cause  of  demurrer  thereto  :  and 
for  cause  of  demun-er,  tliis  defendant  saith,  that,  by  the  complainant's  own  shewing, 
the  said  bill,  (in  case  the  allegations  therein  contained  were  true,  which  this  defend- 
ant does  in  no  sort  admit,)  contains  not  any  matter  of  equity  whereon  this  court  can 
ground  any  decree  or  give  the  complainant  any  rebel'  or  assistance  as  against  this 
defendant :  wherefore  and  for  divers  other  errors  and  imperfections  in  the  said  bill 


496  MORETON  V.  HARRISON. 

farther  say,  that  the  defendant  did  not  promise  or  assume  to  pay 
the  debt  at  any  time  within  twelve  years  before  the  complainants 
filed  their  bill.  Regarding  these  allegations  as  two  distinct  pleas, 
they  are,  as  pleaded,  each  of  them,  informal  and  wholly  insuffi- 
cient. And,  taking  them  as  one  plea,  it  is  multifarious  and  double. 
Duplicity  is  a  vice  in  pleading,  and  singleness  is  no  less  necessary 
in  equity  than  at  law.     This  plea  must,  therefore,  be  overruled.(e) 

The  object  of  this  bill  is  to  enforce  an  equitable  lien  by  a  ven- 
dor against  a  vendee,  and  to  have  the  land  sold,  in  virtue  thereof, 
for  the  payment  of  the  balance  of  the  purchase  money.  Whether 
a  plea,  that  the  cause  of  action  had  been  more  than  twelve  years 
standing  grounded  on  the  act  of  assembly, (y)  in  any,  the  most 
correct  form,  would  avail  against  a  claim  of  this  kind,  does  not 
appear  to  have  been  at  all  considered,  or  alluded  to.  I  shall  there- 
fore express  no  opinion  upon  the  subject. 

V/hereupon  it  is  ordered,  that  the  said  pleas  be  and  the  same  are 
hereby  overruled :  and  the  defendant  is  required  to  make  a  good 
and  sufficient  answer  to  the  plaintiffs'  bill  of  complaint  on  or  before 
the  fifteenth  day  of  February  next. 

The  defendant  filed  his  answer  w^ith in  the  time  prescribed;  in 
which  he  admitted  the  purchase  and  possession,  but  relied  on  the 
lapse  of  time,  &c.  The  plaintiff  put  in  a  general  replication  ;  and 
commissions  were  issued  and  testimony  taken  and  returned  ;  after 
which,  with  the  leave  of  the  court,  the  plainti^s  so  amended  their 
bill  as  to  make  the  heirs  at  law  of  the  late  James  Pattison,  who  at 
the  time  of  his  death  was  seized  of  the  whole  legal  title  to  the 
lands,  parties  plaintiffs  in  this  suit. 

appearing,  this  defendant  dotli  demur  in  law  thereunto ;  and  humhly  demands  tlie 
judgment  of  this  honourable  court,  whether  he  shall  be  compelled  to  put  in  any 
furtlier  or  other  answer  to  the  said  bill ;  and  humbly  prays  to  be  hence  dismissed 
with  his  reasonable  costs  in  this  behalf  most  wrongfully  sustained. 

Thomas  Jznings,  for  Deft. 
2d  September ^,1789. — Rogers,  Chancellor. — Decreed,  that  the  bill  aforesaid  of  the 
complainant  be  dismissed,  and  the  same  is  hereby  dismissed ;  and  that  the  said  com- 
plainant pay  to  the  said  defendant  his  costs  in  this  behalf  expended. —  Chancery  Pro- 
ceedings, Lib.  S.  H.  H.,  letter  B.  722. 

N.  B.  Recollecting,  as  has  been  before  explained,  {H.  K.  Chase's  Case,  ante,  217,) 
that  a  demurrer  is  overruled  by  a  plea,  it  is  obvious,  that  this  decree  must  have  been 
founded  upon  the  propriety  of  thus  pleading  two  pleas,  and  upon  the  validity  of  one 
or  both  of  the  pleas. 

(e)  Whitbread  v.  Brockhmst,  1  Bro.  C.  C.  417;  S.  C.  2  Ves.  &,  Bea.  153,  note. 
(/)   1715,  ch.  23,  s.  6. 


MORETON  V.  HARRISON.  497 

2Qth  August,  1828.— Blaxd,  Chancellor. — This  case  standing 
ready  for  hearing,  and  having  been  submitted  on  notes  by  the 
respective  soHcitors,  the  proceedings  were  read  and  considered. 

It  appears,  that  James  Pattison  in  the  year  1787,  was  seized  in 
fee  of  a  tract  of  land  called  Hunfs  Mounts  containing  one  hundred 
and  sixty  acres,  the  one  half  of  which  he  held  as  his  own,  and 
the  other  moiety  in  trust  for  the  use  of  John  V/esteneys ;  that,  on 
the  24th  of  December  1787,  they  sold  this  land  to  Walter  Harri- 
son, for  the  sum  of  four  pounds  per  aci'c,  the  one-fourth  of  the 
purchase  money  to  be  paid  on  the  first  of  May  1789,  one  other 
fourth  on  the  first  of  September  following,  and  the  other  two-fourths 
on  the  first  of  September  1790 ;  the  whole  to  bear  interest  from 
the  time  Harrison  obtained  possession.  Other  stipulations  are 
'contained  in  the  contract,  but  they  have  no  material  bearing  upon 
the  matters  put  in  issue  between  the  parties  to  this  siiit.  The  land 
was  accordingly  delivered  to  Harrison  on  the  24th  of  December 
1787,  and  he  has  had  peaceable  possession  of  it  ever  since.  He 
made  several  partial  payments,  the  last  of  which  was  on  the  16tli 
of  October  1793,  but  there  is  no  proof,  that  he  ever  made  any 
other  or  further  payments  since  that  lime.  This  contract  and  these 
payments  are  shewn  by  a  bond,  marked  as  the  plaintiffs'  exhibit  A, 
given  by  Harrison  to  Pattison  and  Wcsteneys,  dated  on  the  24th  of 
December  1787,  with  the  acknowledgements  of  the  payments 
endorsed  thereon.  Some  time  after  these  transactions  Pattison 
and  Westeneys  died. 

The  defendant  in  his  answer  admits  the  contract  for  the  land, 
and  his  possession  of  it  as  stated  in  the  bill,  but  he  says,  that  in 
pursuance  of  his  contract  he  made,  at  <lifferent  times,  considerable 
payments,  but  from  the  length  of  time  is  unable  to  state  the  precise 
amount  of  each ;  and  does  not  admit,  that  he  has  obtained  credit 
for  ail  he  has  paid  ;  nor  can  he  admit,  that  any  part  of  the  pur- 
chase money  is  due  from  him ;  and  he  denies  that  he  has  admitted 
to  any  one,  that  any  part  of  said  money  was  due,  or  that  he  has 
promised  at  any  time  to  pay  the  same.  ^He  then  alleges  and  pleads 
in  bar  of  the  plaintiffs'  claim,  that  the  debt,  in  the  condition  of  the 
writing  obligatory  mentioned,  has  been  standing  and  in  action 
above  twelve  years  before  the  institution  of  this  suit,  therefore  he 
relies  upon  the  act  of  limitations.  In  addition  to  which  he  relies 
upon  the  great  lapse  of  time  since  the  debt  became  due,  and  before 
this  suit  was  brought,  as  furnishing  evidence  of  the  payment  of 
the  said  debt.  Thus  it  appears,  that  the  defendant  rests  his  defence 

63 


498  MORETON  V.  HARRISON. 

upon  a  denial  of  the  admissions  and  promises  charged  in  the 
bill ;  upon  the  positive  bar  of  the  statute  of  limitations  in  rela- 
tion to  bond  debts  ;  and  upon  the  presumption  of  payment  arising 
from  the  lapse  of  time.(o-) 

The  defendant's  solicitor  seems  to  have  considered  the  contract, 
upon  which  this  suit  has  been  instituted,  as  a  mere  stipulation  for 
the  payment  of  money,  and  nothing  more.  But  there  is  a  substan- 
tial distinction  between  a  loan  of  money  and  a  sale  of  property.  In 
a  contract  of  loan  there  never  is  any  other  intention  than  that  of 
creating  the  relation  of  debtor  and  creditor ;  and  the  contract  is  as 
complete,  and  the  relation  of  debtor  and  creditor  attaches  as  firmly 
without  as  with  a  written  evidence  of  the  debt.  A  mortgage, 
bond,  or  note,  given  a^  a  security,  is  a  mere  accidental  circum- 
stance in  a  transaction  concluded  and  complete  by  the  advance  of 
the  money.  The  stipulation  entered  into  as  a  security  is  an  addi- 
tion which  does  not  arise  as  an  incident,  or  in  any  respect  follow 
as  a  necessary  legal  consequence "^of  a  contract  of  loan.  In  a  sale 
of  real  estate  the  principles  of  equity  are  materially  different.  In 
purchase,  payment  is  an  essential  part  of  the  contract ;  consequently, 
where  the  whole,  or  any  part  of  the  purchase  money  remains  unpaid, 
it  is  an  established  general  rule,  derived  to  us  from  the  civil  law,  that 
the  vendor  holds  a  lien  upon  the  estate  sold  for  the  purchase  money 
unpaid.  The  adjudications  upon  the  subject  have  occasioned  some 
difficulty  in  ascertaining  what  shall  amount  to  a  waiver  or  relin- 
quishment of  this  equitable  lien ;  but  it  is  perfectly  well  settled, 
that  in  eveiy  case  of  a  purchase  of  real  estate,  where  there  has 
been  i^o  such  waiver  or  relinquishment,  the  vendor  has  a  lien  upon 
the  property  sold  to  secure  the  payment  of  the  purchase  money,  as 
against  the  vendee,  his  heirs,  and  all  others  who  take  under  him 
with  notice.  This  vendor's  lien  is  an  equitable  incident  uniformly 
and  necessarily  arising  from,  and  associated  with  every  contract 
of  bargain  and  sale  of  real  estate,  where  the  purchase  money  is 
not  paid;  and,  is  considered  as  parcel  of  the  contract  itself, 
unless  it  be  shewn  to  have  been  tacitly  or  expressly  aban- 
doned. (A) 

The  case  presented  by  this  bill  is  one  arising  on  a  contract  of 
bargain  and  sale  of  real  estate  with  an  incident  lien  for  the  pay- 


(§■)  Mitf.  Plea.  306.— (/i)  Sug.  Vend.  &  Pur.  ch.  12  ;  Pow.Mort.  1062;  Brown  v. 
Gilman,  4  Wheat.  256 ;  Bayley  v.  Greenleaf,  7  Wheat.  46  ;  Tompkins  v.  Mitchell, 
2  Rand.  428. 


MORETOX  V.  HARRISON.  499 

ment  of  the  purchase  money.  It  is  this,  or  there  is  nothing  in  the 
bill  to  give  the  court  jurisdiction  ;  for,  if  it  were  a  mere  loan,  in 
which  the  relation  of  debtor  and  creditor  was  created,  to  which 
was  added. the  security  of  a  bond,  to  insure  the  payment  of  the 
debt  due,  the  plaintiffs  would  have  a  complete  remedy  at  law,  and 
this  court  could  not  take  cognizance  of  the  case  ;  nor  would  the 
prayer  in  the,  bill  for  an  account  give  the  court  jurisdiction,  since 
the  case  is  not,  in  itself,  a  proper  one  for  an  account, — there  being 
no  mutual  dealings  which  give  rise  to  a  series  of  charges  on  one 
side  as  opposed  to  a  variety  of  payments  on  the  other.  (2)  This  is 
a  single  stipulation  and  charge ;  and  the  object  is  to  enforce  the 
equitable  lien  as  being  a  part  of  the  contract  of  sale. 

This  equitable  lien  is  to  be  found  classed,  in  all  the  books,  with 
mortgages ;  it  is  however  not  precisely  the  same,  in  all  respects, 
as  an  ordinary  mortgage,  given  as  a  security  for  a  loan  of  money : 
but  it  is  a  specific  lien,  in  most  respects  so  strongly  analogous  to 
the  specific  lien  of  a  common  mortgage,  that  they  have  been  almost 
altogether  regulated  by  the  same  principles  of  equity.  But  these 
securities, — neither  the  incident,  nor  the  express  lien  as  by  mort- 
gage,— should  not  be  confounded  with  mere  personal  securities,  or 
obligations  for  the  payment  of  money  of  any  class  or  grade  what- 
ever. A  bond,  promissory  note,  or  simple  contract  for  the  payment 
of  money,  in  any  shape  or  form,  is  a  personal  contract  which 
surely  cannot,  either  at  law  or  in  equity,  be  assimilated  to,  or 
governed  by  the  principles  applicable  to  a  mortgage  of  any 
description. 

These  plaintiffs  do  not  ask  to  have  their  specially  or  simple  con- 
tract enforced  as  a-  means  of  obtaining  payment  from  their  debtor. 
They  do  not  plant  themselves  on  the  mere  relation  of  creditors 
against  this  defendant  as  their  debtor.  They  are  here  as  vendors 
against  the  defendant  as  their  vendee  ;  and  they  claim  the  benefit 
of  the  lien  which  they  hold  as  an  incident  of  that  relationship.  As 
mortgagees  they  sue  this  defendant  as  the  mortgagor  of  certain  pro- 
perty, which  they  ask  to  have  sold  to  satisfy  the  balance  due  upon 
that  mortgage.  This  is  the  light  in  ^iiich  this  controversy  must 
be  considered  ;  consequently,,  the  statute  of  limitations  in  relation 
to  bonds  and  simple  contracts  for  the  payment  of  money  can  have 
no  sort  of  application  to  this  case. 

This  equitable  lien  is  so  far  a  mortgage,  that  the  limitation  or 

(i)  Dinvviddie  v.  Bailey,  6  Vcs.  141  ;  Smith  v.  Marks,  2  Rand.  449. 


500  MORETON  V.  HARRISON. 

presumption  of  satisfaction  arising  from  the  lapse  of  twenty  years, 
as  applicable  to  ordinary  mortgages,  does,  in  like  manner,  furnish 
evidence,  or  a  presumption,  that  such  equitable  lien  has  been  satis- 
fied or  discharged.  An  equitable  lien  is  founded  upon  the  princi- 
ple, that  the  legal  title  has  not  been  parted  with,  or  ought  not  to 
be  considered  as  completely  vested  in  the  vendee  until  the  whole 
purchase  money  has  been  paid  ;  because  it  is  deemed  unjust  to 
consider  any  one  as  the  absolute  legal  owner  of  property  which  he 
has  purchased,  but  has  not  paid  for.  If  the  whole  legal  title  remains 
in  the  vendor,  he  may  bring  an  ejectment,  to  which  a  limitation  of 
not  less  than  twenty  years  is  a  bar :  but  if  the  formal  legal  title  has 
been  parted  with  by  the  vendor  before  payment,  then,  his  having 
so  ceded  it,  gives  him  an  equitable  right  to  enforce  payment 
here  with  all  the  advantages  he  had  as  the  actual  holder  of  the 
legal  title ;  that  is,  as  a  mortgagee  coming  here  to  foreclose ;  in 
which  case,  by  analogy  to  the  statute  of  limitations,  no  time  short 
of  the  lapse  of  twenty  years  is  ever  deemed  sufficient  to  raise  a 
presumption  of  satisfaction.  This  court  has  repeatedly  acted  upon 
these  principles. (j) 

This  bill  has  been  treated-  by  the  defendant  as  a  suit  insti- 
tuted to  recover  the  money  secured  by  the  bond  alone,  or  a  debt 
due  by  simple  contract.  If  that  were  the  fact,  the  conclusions 
■which  he  has  deduced,  it  is  admitted,  must  inevitably  follow.  But 
it  has  been  shewn  that  such  is  not  the  fact ;  and  the  circumstance, 
of  the  purchase  money  having  been  secured  by  a  bond,  in  addition 
to  the  security  of  the  equitable  lien,  canno-t  in  the  slightest  degree 
affect  the  plaintiffs'  right  to  the  relief  they  ask  by  this  bill.  In  all 
cases  of  the  sale  of  real  estate  the  purchase  money,  if  not  paid, 
may  be  secured  in  various  ways.  The  vendor  may  take  a  mort- 
gage, but  by  doing  so  he  virtually  waives  his  equitable  lien  ;  he 
may  take  a  bond,  and  also  a  note  in  addition  to  a  mortgage,  or  the 
equitable  lien,  of  w^hich  the  bond  or  note  will  not  generally  amount 
to  a  virtual  waiver.  If  he  takes  all  these  assurances,  then  it  is 
well  settled,  that  he  may  proceed  at  law  and  in  equity  upon  each 
of  them  at  one  and  the  same  time,  and  recover  upon  all,  although 
he  can  have  but  one  satisfaction. (^')  To  his  ejectment  at  law  and 
bill  in  equity  to  foreclose,  twenty  years  is  the  limitation  ;  to  his  suit 
upon  the  bond,  twelve  years  constitutes  a  bar ;  and  to  his  action 


(j)  Lingan  v.  Henderson,  ante,  282.— (/c)  Pow.  Mort.  96G,  note  G. ;  Hughes  v. 
Edwards,  9  Wheat.  494. 


MORETOIV  V.  HARRISON.  501 

upon  the  simple  contract  a  limitation  of  three  years  is  a  bar.  But 
although  in  the  actions  upon  the  bond  and  the  simple  contract 
judgment  maybe  rendered  against  him,  upon  the  plea  of  limitation 
applicable  to  each,  that  cannot,  in  any  manner,  affect  his  remedy 
by  ejectment  or  the  bill  to  foreclose. (/) 

It  appears,  that  more  than  thirty-two  years  have  elapsed  since 
the  last  payment  before  this  suit  was  instituted.  This  great  lapse 
of  time  affords  ample  ground  for  the  presumption  of  satisfaction 
upon  which  the  defendant  relies  ;  and  if  not  explained  or  repelled 
must  be  admitted  to  be  a  complete  bar  to  the  plaintiffs'  claim. 
Lapse  of  time  operates  as  a  bar,  because  of  its  raising  a  presump- 
tion either,  that  the  claim  never  existed,  or  if  it  had  once  existed, 
that  it  has  been  satfsfied.  It  cannot  however  be  presumed, 
that  this  claim  never  existed,  because  that  is  expressly  admitted 
by  the  defendant  himself;  consequently  this  lapse  of  time  can  only 
be  insisted  on  so  far  as  it  affords  a  presumption  of  satisfaction. 
The  defendant  avails  himself  of  it  in  like  manner  as  he  might  have 
done  of  positive  proof  of  payment.  He  adduces  and  relies  upon  it 
as  evidence  to  sustain  an  allegation  of  payment.  (??i) 

But  the  defendant  does  not  frankly  and  directly  declare,  that  he 
had  actually  paid  the  whole  amount  of  the  purchase  money.  After 
expressly  admitting  the  contract,  he  then  says,  he  does  not  admit, 
that  he  has  obtained  all  the  credits  he  ought  to  have ;  he  denies 
that  he  admitted  to  any  one,  that  any  part  of  the  purchase  money 
was  due,  or  that  he  promised  to  pay  it ;  and  he  does  not  admit, 
that  any  part  of  the  purchase  money  is  due  from  him.  All 
this,  according  to  the  letter,  may  be  true,  and  yet  the  defendant 
may  well  know  in  his  conscience,  that  he  has  not  paid  the  whole 
purchase  money.  If  he  knew  he  had  actually  paid  it,  why  not 
expressly  say  so,  instead  of  saying  he  did  not  admit  that  any  part 
of  it  was  due  from  him  ?  Perhaps,  by  a  sort  of  mental  reservation 
he  meant  to  say,  he  did  not  admit  it  was  due,  not  because  he 
could,  with  a  clear  conscience,  say  he  had,  in  reality,  paid  it ;  but, 
being  authorized  to  rely  upon  the  presumption  arising  from  the 
lapse  of  time,  he  therefore  did  not  admit  it  was  due  from  him. 
This  is  certainly  a  very  stale  claim ;  but  its  being  so  ought  not 
to  be  received  as  an  apology  for  the  slightest  departure  from  that 
frankness  which  the  court  always  expects  from  a  defendant  when 


(Z)  Toplis  V.  Baker,  2  Cox.  123.— (m)  Pow.  jMort.  3G1,  note,  U5",  11.55;    Chal- 
mer  v.  Bradley,  1  Jac.  &  Walk.  63  ;  Christophers  v.  Sparke,  2  Jac.  St  Walk.  23.3. 


502  MORETON  r.  HARRISON. 

called  on  to  speak  of  matters  within  his  own  knowledge.  But 
although  this  very  guarded  language  of  the  defendant  does  look 
a  little  suspicious,  yet  it  must  be  admitted,  since  no  exception  has 
been  taken  to  his  answer,  that  he  has  said  enough  to  entitle  him 
to  rely  upon  the  presumption  of  satisfaction. 

The  witness  Lewis  Sutton  says,  that  the  defendant  admitted  to 
him  early  in  the  year  1820,  that  he  had  not  then  paid  the  whole 
amount  of  the  purchase  money.  This  testimony  positively  con- 
tradicts one  of  the  defendant's  allegations,  and  diminishes  the 
extent  of  the  presumption  relied  on  by  him :  it  is  calculated  to 
shake  our  faith  in  his  answer.  Still,  the  claim  is  a  stale  one  ;  and 
there  is  some  scope  left  on  which  to  rest  a  presumption  of 
satisfaction. 

The  witness  Benjamin  Ccvrr  says,  that  about  February  1825, 
"  he  had  a  conversation  with  the  defendant  Walter  Harrison  rela- 
tive to  the  agreement  between  him  and  Westeneys  and  Pattison  for 
the  purchase  of  a  tract  of  land  called  Hunfs  Mount  in  Ann  Arun- 
del county :  that  the  defendant  commenced  the  conversation  by 
informing  him  that  Pattisoji  and  Moreton  had  laid  down  the  land, 
and  that  they  were  now  contending  for  it ;  that  the  first  payment 
which  he,  Harrison,  had  made,  was  made  in  tobacco ;  after  which 
payment  there  was  a  dispute  took  place  between  Pattison  and 
Westeneys,  each  forbidding  him,  Harrison,  from  making  any  further' 
payment  to  the  other  ;  and  Harrison  said  he  afterwards  deposited 
the  purchase  money  for  said  land  in  the  bank."  This  testimony, 
which  has  not  been  in  the  slightest  degree  impeached,  does  most 
satisfactorily,  when  taken  in  connexion  with  all  the  circumstances 
of  this  case,  repel  the  presumption,  and  account  for  the  delay.(n) 
Payment  was  not  urged  because  of  the  dispute  between  those  who 
were  to  receive ;  while  that  controversy  continued,  the  defendant 
might  have  been  very  unsafe  in  paying  to  either  of  them ;  and 
therefore  it  was  to  his  advantage  to  wait  until  they  united  in  the 
demand  or  made  it  in  this  way  by  a  suit,  or  in  such  other  form  so 
as  he  could  be  assured  the  payment  might  be  safely  made. 

Whereupon  it  is  decreed,  that  the  defendant  Walter  Har- 
rison^ on  or  before  the  26th  of  September  next,  pay  or  bring 
into  this  court  to  be  paid  to  the  said  plaintiffs,  Joseph  More- 
ton,  administrator  de  bonis  non  of  John  Westeneys,  and  to  James 
I.  Pattison,  administrator  de  bonis  non  of  James  Pattison,  to  each 

(n)  Pow.  Mort.  392. 


HODGES  V.  MULLIKIN.  5O3 

one  an  equal  moiety  of  the  sum  of  $4,641  21,  with  legal  interest 
on  $1,501  20,  part  thereof,  from  this  day  until  paid  or  brought  in, 
together  with  all  the  costs  of  this  suit  incurred  by  each  of  the  said 
complainants  :  and,  that  on  the  defendant's  failing  to  pay  or  bring 
into  court  the  said  sum  of  money  with  interest  and  costs  as  afore- 
said, the  property  in  the  proceedings  mentioned  be  sold  for  the 
payment  thereof;  that  Augustus  E.  Addison  he  znd.  he  is  hereby 
appointed  the  trustee,  &c.  &c. 


In  pursuance  of  this  decree  the  land  was  sold,  and  the  sale  hav- 
ing been  finally  ratified,  on  the  30th  June  1829,  tlie  proceeds  were 
paid  to  the  plaintiff  Moreton,  to  whom  they  were  shewn  to  belong 
exclusively,  in  consequence  of  the  other  plaintiff  Pattison  having 
received  satisfaction  to  an  equal  amount. 


HODGES  V.  MULLIKIN. 


On  an  application  for  leave  to  file  a  bUI  of  review  on  the  ground  of  newly  discovered 
matter ;  whether  it  is  in  truth  newly  discovered  or  not,  is  a  question,  which  must 
be  then  traversed  and  finally  determined,  so  as  not  to  leave  it  open  upon  the 
bill  of  review  itself. 

A  co-defendant,  as  to  whom  a  decree  is  not  asked  to  be  opened,  or  cannot  be  opened, 
is  a  competent  witness  as  to  any  fact  upon  which  another  defendant  prays  to  have 
the  decree  opened. 

A  trustee,  whose  liability  cannot  be  altered  by  the  opening  of  a  decree,  is,  upon  that 
question,  a  competent  witness  for  either  party. 

An  attorney  whose  client  is  not  a  party,  to  object  or  consent  to  his  examination,  can- 
not be  permitted  to  speak  of  any  facts  which  came  to  his  knowledge  as  such. 

If  the  new  matter  actually  came  to  the  knowledge  of  the  paily,  or  might  have  been 
known  to  him,  by  reasonably  active  diligence,  so  long  before  the  decree  as  to 
have  enabled  him  to  have  had  the  matter  put  upon  the  record  at  the  hearing,  no 
bill  of  review  will  be  allowed. 

Although  the  party,  applpng  for  a  re-hearing,  may  himself  have  no  merits,  yet  if  he 
shews,  that  the  interests  of  innocent  tliird  persons,  or  those  for  whom  he  is  trustee 
may  be  injuriously  affected,  the  re-hearing  will  be  granted. 

The  lien  qf  the  State  commences  with  the  institution  of  the  suit,  and  therefore  it 
should  be  distinctly  shewn. 

This  bill  was  filed  on  the  15th  June  1822,  by  Benjamin  Hodges 
against  Thomas  Hanoood  of  Ben.  and  Benjamin  Mullikin  ;  and  it 
alleges,  that  the  defendant  Hanoood  had,  by  a  deed  bearing  date 


504  HODGES  V.  MULLIKIN. 

on  the  7th  of  April  1810,  conveyed  certain  real  and  personal  estate 
to  the  defendant  MuUlkin  and  Benjamin  Hanoood,  who  is  shice 
dead,  and  to  the  survivor  of  them,  in  trust  for  the  purposes  therein 
mentioned ;  and  that  afterwards,  on  the  13th  of  March  1817,  the 
defendant  Harwood  mortgaged  the  same  property  to  the  plaintiff, 
which  mortgage  debt  was  then  due  and  unpaid :  whereupon  it  was 
prayed,  that  the  mortgaged  property  might  be  sold,  &c.  The 
defendants  put  in  their  answers ;  and,  on  the  2d  of  May  1825,  a 
decree  was  passed  ordering  the  mortgaged  estate  to  be  sold,  &c. 

On  the  25th  of  August  1828,  the  defendant  Midlikin  filed  his 
petition,  on  oath,  setting  forth  particularly  all  the  circumstances  of 
his  case  :  upon  w^hich  he  prayed  for  leave  to  file  a  bill  of  review,  &c. 

27^A  August,  1828.— Bland,  Chancellor. — Ordered,  that  the 
matter  of  the  aforegoing  petition  stand  for  hearing  on  the  thirteenth 
day  of  September  next ;  and  each  party  is  authorized  to  take  tes- 
timony, before  any  justice  of  the  peace,  to  be  read  at  the  hearing, 
on  giving  to  the  opposite  party  three  days  notice  as  usual.  Pro- 
vided that  a  copy  of  this  order,  together  with  a  copy  of  the  said 
petition,  be  served  on  the  complainant  on  or  before  the  fifth  day  of 
September  next. 


Under  this  order  testimony  was  taken  and  returned;  sundry 
documents  were  filed  in  relation  to  the  matter  of  the  petition ;  and 
the  case  was  thus  brought  before  the  court. 

lO^A  October,  1828. — Bland,  Chancellor. — The  matter  of  the 
petition  of  the  defendant  Mullikin  standing  ready  for  hearing,  and 
the  solicitors  of  the  parties  having  been  fully  heard,  the  proceed- 
ings were  read  and  considered. 

It  appears,  that  the  defendant  Thomas  Harwood  w^as  indebted  to 
the  State,  and  also  to  several  individuals  ;  for  the  payment  of 
which  debts,  the  late  Benjamin  Harwood  and  the  defendant  Mulli- 
kin, had  become  bound,  by  bond  or  by  promissory  note's,  as  his 
sureties;  and  that,  for  the  purpose  of  saving  harmless  these  his 
sureties,  he  executed  a  deed,  on  the  7th  of  April  1810,  by  which 
he  conveyed  certain  real  and  personal  property  to  them,  and  the 
survivor  of  them,  in  trust  for  the  payment  of  those  specified  debts 
for  which  they  or  either  of  them  were  bound  as  his  surety  :  and, 
in  case  either  of  those  debts  were  not  paid,  within  five  years  from 
that  day,  with  power  to  sell  the  whole,  or  so  much  thereof  as 
might  be  necessary  to  satisfy  them.  After  the  execution  of  this  deed 
of  trust,  this  Thomas  Harwood  being  indebed  to  the  \^hinhff  Hodges , 


HODGES  l:  MULLIKIX.  505 

he,  Harwood,  on  the  lllh  of  Septembei-  1810,  by  a  deed  legally 
executed,  mortgaged  the  same  property  to  Hodges  for  the  debt 
due  to  him.  But  as  this  mortgage  recites  the  deed  of  trust, 
Hodges  could  only  take  subject  to  the  prior  lien  created  by  that 
deed. 

On  this  state  of  things,  Hodges  filed  his  bill,  on  the  15th  of  June 
1822,  against  Thomas  Hanoood,  and  Benjamin  Mullikin,  as  the 
surviving  trustee,  to  have  the  property  sold  for  the  satisfaction  of 
the  debt  for  which  it  had  been  mortgaged ;  by  his  bill,  he 
makes  an  exhibit  of  the  deed  of  trust  as  well  as  the  mortcrasfe, 
and  states,  that  Benjamin  Harwood  was  dead  ;  in  consequence 
of  which  the  trust  had  survived  to  the  defendant  Mullikin. 
This  suit,  thus  instituted,  was  marked  on  the  docket  for  the  use  of 
Wilson  Si  Sons.  Harwood,  in  his  answer,  filed  on  the  12th  of 
December  1822,  states,  that  the  debts  specified  in  the  deed  of 
trust  were  still  unpaid,  and  insists  that  a  decree  in  favour  of 
Hodges  cannot  be  passed  ;  on  the  ground,  that  those  creditors 
have  a  prior  lien,  and  should  be  made  parties.  But  Mullikin,  in 
his  answer,  filed  on  the  14th  of  July  1823,  merely  says,  that 
he  has  sustained  no  injur}-;  has  no  claim  to  the  property  men- 
tioned in  the  deed  of  trust ;  and  submits  to  such  decree  as  may 
be  deemed  just.  To  these  answers  a  genervil  replication  having 
been  filed,  a  commission  was  issued,  which  having  been  returned 
without  collecting  any  proofs,  the  case  was  submitted  on  the  notes 
of  the  solicitor  for  the  plaintiff,  and  on  the  notes  of  the  solicitor 
for  the  defendant  Harwood.  Upon  which,  on  the  2d  of  May 
1825,  a  decree  was  passed,  that  unless  the  defendant  Hai-wood 
paid  the  mortgage  debt  and  costs  on  or  before  the  2d  of  June, 
then  next,  the  property  should  be  sold.  It  does  not  appear,  that 
the  mortgage  debt  has  been  paid,  or  that  any  sale  has  been  made 
under  the  decree. 

On  the  25th  of  August  last  the  defendant  Mullikin  filed  his 
petition,  on  oath,  in  which  he  sets  forth  particularly  the  course 
he  had  pursued,  and  how  far  he  was  uninformed ;  and  concludes 
by  averring,  in  general  terms,  that  he  acted  throughout  in  igno- 
rance of  his  legal  rights  and  duties ;  in  ignorance  of  the  facts ; 
and  was  misled  and  deceived  by  his  co-defendant  Harwood; 
by  the  gross  neglect  of  the  specified  creditors  to  notify  him  of  their 
claims  ;  and  by  the  omission  of  the  plaintifif's  sohcitor,  JVichoUis 
Brewer,  to  inform  him  of  the  answer  of  the  defendant  Hat-wood, 
and  the  matters  therein  stated.     Upon  which  the  petitioner  asked 

64 


506  HODGES  V.  MULLIKIN. 

leave  to  file  a  bill  of  review,  or  to  have  granted  to  him  such 
other  relief  as  the  nature  of  the  case  might  require. 

It  has  been  urged,  that  the  petition,  having  been  sworn  to,  is  of 
itself  sufficient  ground  for  granting  leave  to  file  a  bill  of  review ; 
that  it  was  entirely  unnecessary  to  have  taken  any  testimony  in 
support  of  the  allegations  of  the  petition  ;  and  therefore,  that  it 
would  be  needless  to  decide  upon  the  objections  made  to  the  com- 
petency of  the  witnesses  who  have  been  examined. 

I  have  met  with  no  instance  in  the  English  books,  in  which  it 
appears,  that  any  testimony  had  been  taken  and  read  at  the  hearing 
of  an  application  for  leave  to  file  a  bill  of  review  grounded  on  an 
alleged  discovery  of  new  matter  unknown  before  the  decree.  It  is 
clear,  that  the  party  himself,  as  well  as  his  solicitor,  if  the  solicitor 
be  alive,  and  there  is  any  reason,  from  the  circumstances  of  the 
case,  to  believe  that  he  might  have  known  of  the  alleged  new  matter, 
must  each  of  them  make  a  particular,  full,  and  distinct  affidavit, 
that  he  did  not,  before  the  decree,  know  of  that  which  is  stated 
as  the  newly  discovered  matter. (a)  But,  it  is  said  to  be  necessary 
to  state  in  such  bill  of  review,  that  leave  was  obtained  to  file  it, 
and  the  fact  of  the  discovery ;  though  it  may  be  doubted,  whether 
after  leave  given  to  file  the  bill,  that  fact  is  traversable  ;  or  whether, 
if  it  should  not  be  admitted  it  must  be  proved  at  the  hearing  of  the 
bill  of  review.  (6)  Hence  it  would  seem,  that  the  grounds  upon 
w^hich  the  leave  is  granted  should,  at  one  stage  or  other,  be  allowed 
to  be  traversed,  and  be  required  to  be  sustained  by  proof.  If  so, 
then  it  is  obviously  best  for  all  concerned,  that  every  doubt,  as  to 
the  grounds  upon  which  the  leave  rests,  should  be  finally  and 
conclusively  settled  before  the  bill  is  filed ;  for  otherwise  there 
w'ould  not  be  that  security  against  the  vexatious  renewal  of  a  suit 
which  ought  to  exist,  as  contemplated  by  the  rule  which  has 
been  so  long  and  so  often  approved;  and  besides,  if  it  were 
otherwise,  on  the  hearing  of  such  a  bill  of  review,  the  question, 
as  to  the  propriety  of  the  leave,  would  always  be  made  or 
renewed  as  a  preliminary  point  at  that  advanced  stage  of  the 
proceeding. 

In  England  this  matter  may  be  attended  with  some  difficulty ; 
as,  I  believe,  the  cheap  and  expeditious  method  of  having  testi- 
mony taken  before  a  justice  of  the  peace,  respecting  any  interlocu- 
tory matter  requiring  an  early  decision,  which  has  been  so  long  and 

(a)  1  Harr.  Pra.  Chan.  179.— (fc)  Mitf.  Plea.  89. 


HODGES  V.  MULLIKIX.  507 

ivell  established  as  a  practice  in  Marylancl,(r:)  is  unknown  to  the 
chancery  practice  of  England.  On  an  application  for  leave  to  file 
a  bill  of  review  on  the  ground  of  nQi\-ly  discovered  matter,  I  con- 
sider it  most  correct  and  conformable  to  the  course  of  this  court,  in 
similar  cases,  that  the  propriety  of  granting  the  leave  should  be  at 
once  fully  investigated ;  that  proofs  should  be  admitted  to  be  intro- 
duced in  relation  to  it ;  and  that  the  question  should  be  then  finally 
determined ;  since  the  evidence,  should  any  be  wanted  by  either 
party,  may  be  so  fully  and  so  readily  collected  by  authorizing  the 
parties  to  take  testimony  before  a  justice  of  the  peace,  to  be  read 
at  the  hearing  of  the  application.  But  if  no  proof  should  be 
asked  for,  then  the  application  may  be  determined  upon  the 
petition  only  as  sworn  to  by  the  party  applying.  I  am  therefore 
of  opinion,  that  according  to  the  principles  and  practice  in  chan- 
ceiy  of  this  State,  the  testimony  in  this  case  has  been  properly 
taken ;  and  therefore  must  now  be  attended  to  so  far  as  it  can  be 
considered  as  coming  from  competent  witnesses. 

It  is  objected  that  the  defendant  Thomas  Harvjood  is  an  incom- 
petent witness  upon  this  occasion,  because  he  is  interested  in  hav- 
ing this  decree  thrown  entirely  open  by  a  bill  of  review.  In  all 
cases,  where  there  are  two  or  more  defendants,  the  court  may,  if 
the  liabilities  of  the  defendants  are  distinct,  or  are  susceptible  of 
being  separated,  pass  a  decree  affecting  each  differently,  or  in 
favour  of  one  and  against  another  of  them.  But  if  the  case  is  so 
blended  and  entire  as  to  impose  none  other  than  a  joint  liability 
upon  all,  so  that  the  responsibility  of  no  one  can  be  separated  from 
the  rest,  then  there  must  be  a  decree  against  all  or  none.  And  if 
any  one  defendant,  in  such  an  entire  case,  makes  out  a  good 
defence,  the  bill  must  be  dismissed  as  to  all ;  and  there  can  be  no 
decree  against  any  other  defendant,  even  if  he  should  have  admit- 
ted the  plaintiff's  case,  or  the  bill  should  have  been  taken  pro  con- 
Jisso  as  against  him.  This  position  I  take  to  be  sufficiently  clear 
and  satisfactory  upon  the  bare  statement  of  it.  But  where  the 
decree  does  not  charge  two  or  more  defendants  and  is  entire  in  its 
nature,  it  is  not  the  course  of  the  court  to  open  or  modify  it  further 
than  is  indispensably  necessary  to  correct  the  error  complained  of.(c?) 

Applying  these  principles  to  this  case,  it  is  clear,  that  this  decree 
need  not,  and  therefore  will  not  be  opened  in  any  manner  for  the 

(c)  Clapham  v.  Thompson,  ante,  124,  note. — (rf)  Lingan  v.  Henderson,  ante,  235  ; 
Ranelagh  v.  Thornhill,  2  Chan.  Ca.  153. 


508  V  HODGES  r.  MULLIKIN. 

benefit  of  the  defeiidant  Hanvood  ;  because  he  does  not  ask  it ; 
and  because  his  liability,  as  set  forth  and  admitted  by  himself  in  his 
answer,  may  well  be  separated  from  any  charge  against  the  other 
defendant  MulWdn ;  therefore  the  judgment  of  the  court,  so  far 
as  it  has  bound  his  interests  in  favour  of  those  creditors  whose 
claims  he  has  pot  paid,  must  be  allowed  to  stand  and  have  its  full 
force  ;  and  will  only  be  so  modified  as  to  let  in  other  existing 
incumbrances  upon  the  property  conveyed  in  addition  to  that  of  the 
mortgage.  Hence  it  is  perfectly  manifest,  that  Harwood  is  a  wit- 
ness whose  interest  cannot  be  at  all  affected  if  the  decree  remains 
altogether  as  it  now  stands  ;  and  if  it  should  be  opened  for  the 
benefit  of  the  trustee,  and  cestui  que  trusts  under  the  deed  of  the 
7th  April  1810,  an.d  no  further  than  to  let  in  their  incumbrance  in 
addition  to  that  of  the  mortgage;  then,  as  Harwood,  has  been 
introduced  to  have  it  opened  for  that  purpose,  he  is  a  witness  tes- 
tifying against  his  ov/n  interest ;  so  that,  in  either  view  of  the  sub- 
ject, he  is  a  competent  v/itness  upon  the  present  occasion. 

The  competency  of  the  Vv^itness  JVichoIas  Brewer  has  also  been 
objected  to  on  the  ground  of  his  having  an  interest  which  must  be 
affected  by  the  decision  now  called  for.  The  principles  which 
have  been  just  applied  to  the  case  of  the  witness  Harwoodhzxe  in 
some  respects  a  bearing  upon  the  situation  of  this  witness.  He  is 
the  solicitor  of  the  plaintiff,  and  the  trustee  appointed  by  the  decree 
to  make  the  sale.  The  judgment  of  the  court,  so  far  as  regards 
his  client  and  the  defendant  Harwood,  must  be  allowed  to  stand  ; 
and  therefore  he  has  earned  some  compensation  as  the  solicitor  of 
the  plaintiff.  He  has  not  even  yet,  however,  qualified  himself,  by 
giving  bond,  to  act  as  trustee  under  the  decree  ;  but,  in  con- 
sideration of  his  forbearing  to  execute  his  trust,  and  of  an  exten- 
sion of  credit  agreed  to  between  the  plaintiff  and  the  defend- 
ant Harwood,  he,  Harwood,  paid  to  Brewer  $200,  as  it  is  said,  in 
part  of  his  commissions  ;  and  it  is  Brewer''s  liability  to  refund  this 
sum,  in  case  the  decree  should  not  be  executed  as  it  stands,  that 
makes  him,  as  is  alleged,  a  witness  interested  to  maintain  the 
decree  in  favour  of  the  plaintiff  by  whom  he  is  produced.  For- 
bearance to  sue  is  a  consideration  sufficient  in  law  to  give  validity 
to  a  promise. (e)  And  according  to  the  rules  and  practice  of  the 
court,  a  trustee  is  only  allowed  full  commission  upon  the  amount 
of  an  actual  sale  ;  and   if  the  parties  prevent  him  from  makijig 

(e)  Sclw.  N.  P.  56. 


HODGES  V.  MCJLLIKIN.  509 

sale,  after  he  has  qualified  himself  to  act,  he  is  allowed  no  more 
than  half  commissions. (_/)  Now,  in  whatever  way  this  payment, 
made  voluntarily  by  Harwood  to  Brewer,  may  be  contemplated ; 
whether  as  a  solicitor's  fee  ;  or  on  account  of  forbearing  to  sell ;  or 
for  commissions  which  the  parties  themselves,  for  their  own  advan- 
tage, prevented  him  from  earning,  I  do  not  see  how  any  decision, 
which  I  may  now  pronounce,  can  lay  a  foundation  for  making 
Brewer  refund  this  money  ;  or  give  to  any  one  a  better  ground  for 
demanding  it  of  him  than  now  exists.  I  am  therefore  of  opinion, 
that  he  is  a  competent  witness. 

,  The  witness  John  Johnson,  it  \s  objected,  is  not  competent ; 
because  he  acquired  a  knowledge  of  the  facts  about  which  he  is 
called  on  to  speak  as  an  attorney.  I  take  it  to  be  well  established, 
that  an  attorney  or  solicitor  is  at  no  time,  either  before  or  after  the 
termination  of  the  suit  in  which  he  was  retained,  authorized, 
without  the  consent  of  his  client,  to  disclose  any  thing  his  client 
has  communicated  to  him.  This,  how^ever,  is  a  privilege  of  the 
client,  not  of  the  attorney.  And  if  the  client  be  no  party  to  the 
matter  then  in  controversy  so  as  to  be  able  to  communicate  an 
express  or  tacit  relinquishment  of  his  privilege,  the  lips  of  his 
attorney  must  remain  closed ;  and  the  court  cannot  allov*-  him  to 
speak  of  that  which  the  policy  of  the  law  has  prohibited  him  from 
disclosing.  (^)  This  is  a  controversy,  according  to  the  order  of 
the  27th  of  August  last,  between  this  petitioner  and  the  plaintiff; 
therefore,  if  this  witness  had  obtained  his  information  as  the 
attorney  of  the  defendant  Harwood,  he  could  not  now  be  heard ; 
because  Harwood  is  not  here,  as  regards  the  present  controversy, 
to  waive  his  privilege,  even  if  he  were  willing  to  do  so.  But  the 
witness  positively  avers,  that  he  could  not  and  did  not  act  as  the 
attorney  of  Harwood ;  and  that  a  knowledge  of  none  of  the  facts, 
of  which  he  speaks,  was  obtained  as  the  attorney  of  him,  or  of 
any  one  else.  Consequently  he  also  must  be  considered  as  a  com- 
petent witness. 

Having  thus  disposed  of  the  several  preliminary  questions,  we 
may  now  sum  up  the  facts  and  consider  this  application  upon  its 
merits.  There  is  some  contrariety  in  the  particulars  as  they  are 
related  by  the  petition,  and  the  depositions  of  the  witnesses ;  but, 
after  considering  those  discordances,  and  laying  aside  every  thing 


(/)  Gibson's  Case,  ante,  138.— (g-)  Pow.  Mort.  5S3,  note  N. ;  Bac.  Abr.  tit.  Evi- 
dence, A.  3  ;  Clay  v.  Williams,  2  Mun.  122. 


510  HODGES  V.  MULLIKIN.  n 

not  materially  bearing  upon  the  question  to  be  decided,  the  case 
appears  to  be  this  : 

The  defendant  Thomas  Hanvood  had  conA^eyed  his  property  to 
secure  the  payment  of  his  debts  to  the  extent,  and  in  the  manner 
set  forth  by  his  two  deeds  of  the  7th  of  April  and  11th  September 
1810.  .  After  which  tjie  plaintiff  Hodges  filed  his  bill  as  mortgagee 
to  obtain  the  benefit  of  the  deed  of  the  11th  of  September  ;  setting 
forth  the  deed  of  the  7th  of  April,  and  making  this  petitioner  Mul- 
likiii,  the  surviving  trustee  under  that  deed,  a  defendant  along  with 
Thomas  Harwood.  Which  bill  Harwood  answered,  acknowledging, 
that  he  had  executed  those  deeds,  and  that  he  had  not  then  paid 
the  debts  secured  by  either  of  them.  On  MuUikin^s  being  served 
with  a  subpoena  to  answer,  he  at  once  apprehended,  that  it  had 
relation  to  his  situation  as  trustee  under  the  deed  of  the  7th  of 
April ;  and,  therefore,  he  called  on  T.  Harwood  for  information 
respecting  the  situation  of  the  debts  specified  in  that  deed ;  and 
was  told,  that  they  were  very  stale ;  that  more  than  twelve  years 
had  elapsed  since  they  became  due ;  and  that  he,  Mullikin,  could 
have  no  claim  under  the  trust  deed.  But  Harwood  did  not 
inform  Mullikin,  that  suits  had  been  brought,  and  judgments 
obtained  against  himself,  and  the  late  Benjamin  Hat-wood  before 
his  death,  by  some  of  those  creditors.  Mullikin  appears  to  have 
had  the  credulity  to  be  thus  turned  aside  by  T.  Harwood  from 
making  any  further  inquiry ;  and  to  have  been  induced  to  believe, 
that  he  might  consider  himself  as  completely  exonerated,  and  as 
having  no  claim  whatever  upon  the  property  mentioned  in  that 
deed.  After  which  Mullikin,  accompanied  by  T.  Harwood,  called 
on  JYicholas  Brewer,  the  plaintiff's  solicitor,  for  the  express  purpose 
of  obtaining  information  respecting  the  suit,  so  that  he  might  put 
in  his  answer ;  and,  from  the  conversation  which  then  passed,  it 
appears,  that  the  impression  was  again  renewed  upon  the  mind  of 
Mullikin,  that,  as  he  had  not  been,  so  he  could  not  be  injured  ; 
and  therefore  had  no  claim  whatever  upon  the  property  mentioned 
in  the  deed  of  trust.  And  accordingly  he  answered  to  that  effect, 
without  then  having  before  him,  or  ever  having  read  either  the  bill, 
or  the  answer  of  T.  Harwood,  as  is  evident  from  his,  Mullikin'' s, 
making  a  mistake  in  his  answer,  as  to  the  names  of  the  parties  to 
the  bill.  After  thus  answering,  it  appears,  that  Mullikin  rested 
satisfied,  and  had  no  further  information  respecting  the  matter  until 
a  short  time  before  the  filing  of  his  petition  in  the  month  of  August 
last.     On  the  second  of  May  1825  a  decree  was  passed,  grounded 


/  HODGES  V.  MULLIKIN.  511 

upon  the  admission  of  Mullikin,  and  the  absence  of  any  proof  of 
the  then  existence  of  the  debts  mentioned  in  the  trust  deed,  direct- 
ing the  mortgage  debt  to  be  paid,  and  if  not,  that  the  property 
should  be  sold  for  the  satisfaction  of  that  debt  alone. 

The  law  of  the  court  in  relation  to  bills  of  review  was  laid  down 
in  a  set  of  ordinances  or  rules  established  by  Loi'd  Bacon  as  far 
back  as  the  beginning  of  the  year  1618.  The  sound  sense  and 
utility  of  those  rules  have  been  amply  tested,  and  they  have  been 
adhered  to  ever  since.  In  regard  to  the  matter  now  under  consi- 
deration, the  rule  is  expressed  in  these  words  :  "  Upon  new  proof, 
that  is  come  to  light  after  the  decree  made,  and  could  not  possibly 
have  been  used  at  the  time  when  the  decree  passed,  a  bill  of  review 
may  be  grounded  by  the  special  license  of  the  court  and  not  other- 

wise.'Xs") 

According  to  the  English  practice,  no  new  testimony  can  be 

introduced  into  the  case  after  the  'publication  of  that  which  has 
been  taken  has  passed  ;  and  therefore,  if  the  discovery  of  new 
proof  is  made  after  publication,  but  before  a  decree,  the  case  falls 
within  the  meaning  of  the  rule  ;  because  although  it  came  to  light 
before  the  decree,  yet  it  could  not  possibly  have  been  used  at  the 
time  the  decree  passed.  But  in  Maryland  the  mode  of  taking 
testimony  is  different :  here  the  testimony  not  being  taken  in 
secret,  or  during  any  period  held  closed  up  ;  the  English  order  of 
publication,  with  its  incidents  and  consequences,  have  been  vir- 
tually abolished. (A)  Here  a  party  may  at  any  time,  even  after  the 
case  has  been  set  down  for  hearing,  if  the  application  be  made  on 
reasonable  grounds  supported  by  an  affidavit,  obtain  a  commission 
to  take  the  testimony  wanted,  (i)  And  therefore,  if  the  new  proof 
comes  to  light  at  any  time  so  long  before  the  decree  as  to  enable 
the  party  to  apply  for  a  commission,  and  he  neglects  to  make  such 
an  application,  he  will  not  be  allowed  to  have  the  benefit  of  the 
rule  ;  because,  by  the  exercise  of  due  diligence,  he  might  have  had 
his  testimony  brought  in  so  as  to  be  used  at  the  time  of  passing  the 
decree. 

It  is  expressly  laid  down,  that  forgetfulness  or  negligence  of 
parties,  under  no  incapacity,  or  of  their  solicitors,  is  no  foundation 
for  a  bill  of  review  ;{])  and  therefore,  an  executor,  whose  duty  it  is  to 


(g)  Beam.  Ord.  Chan.  2.—{h)  1785,  ch.  72,  s.  14.— (/)  Howard  v.  Howard,  MS. 
February  1S06 ;  Anderson  v.  McCabe,  MS.  1807.— (7)  1  Harr.  Pra.  Chan.  175 ;  Frank- 
lin V.  Wilkinson,  3  Mun.  112;  Jones  r.  Pilcher,  6  Mun.  425. 


512  HODGES  V.  MULLIKIN.  ^ 

look  diligently  after  the  assets  of  his  testator,  and  always  to  know 
the  amount  within  his  reach,  cannot  plead  want  of  assets  after  the 
debt  decreed. (??i)  So  leave  to  file  a  bill  of  review  was  refused  to  be 
granted  upon  newly  discovered  evidence,  of  which  the  party  was 
sufficiently  apprised,  by  the  suggestions  in  a  letter  and  the  proceed- 
ino-s  in  the  case,  to  have  enabled  him,  with  reasonable  diligence,  to 
have  put  it  upon  the  record  originally.  Because  it  was  considered 
as' most  incumbent  on  the  court  to  take  care,  that  the  same  subject 
should  not  be  put  in  a  course  of  repeated  litigation ;  and,  that  with 
a  view  to  the  termination  of  the  suit,  the  necessity  of  using  reasonably 
active  diligence  in  the  first  instance  should  be  imposed  upon  the 
parties. (?i)  It  is  not  sufficient  to  show,  that  injustice  has  been  done  ; 
but  that  it  has  been  done,  under  circumstances  which  authorize  the 
court  to  interfere  ^  because  if  a  matter  has  already  been  investi- 
gated, according  to  the  common  and  ordinary  judicial  rules,  a 
court  of  equity  cannot  take  upon  itself  to  enter  into  it  again. (o) 
But,  to  show,  that  the  party  might,  by  the  exercise  of  reasona- 
bly active  diligence,  have  known,  that  which  he  alleges  he  has 
recently  discovered,  it  is  not  enough,  that  the  newly  discovered 
proof  was  actually  in  his  power  at  the  time  the  decree  was  passed  ; 
it  must  also  appear,  that  he  knew  of  something,  or  that  there 
was  something:  in  the  case  which  miofht  be  considered  as  a  susf- 
gestion,  sufficient  to  apprise  him,  that  there  were  such  other 
facts  and  proofs  pertinent  to  the  case ;  and  which  it  was  his  duty 
to  have  searched  for ;  and,  if  practicable,  to  have  brought  in  and 
put  upon  the  record. (p) 

It  may  be  admitted,  that  the  credulity  of  the  defendant  Mullikin 
has  been  played  upon  to  a  considerable  extent,  and  that  he  has 
even  been  misled  by  those  from  whom  he  sought  information  ;  but, 
that  by  no  means  fijrnishes  a  complete  justification  of  his  gross 
negligence.  He  himself  admits,  that  his  co-defendant  Harwood 
had  told  him,  that  the  debts  mentioned  in  the  deed  of  trust  were 
not  paid  ;  that  information  it  was  his  duty,  as  a  trustee,  to  have 
followed  out  until  he  had  ascertained  the  real  truth,  before  he  ven- 
tured rashly  to  compromit  the  interests  of  the  cestui  que  trusts.  He 
ought,  from  that  suggestion,  to  have  obtained  a  full  knowledge  of 
every  material  particular  respecting  those  debts  ;  the  entire  disclo- 


(m)  Suffolk  V.  Harding,  3  Rep.  Chan.  88.— (n)  Young  v.  Keighly,  16  Ves.  348. 
(o)  Bateman  v.  Willoc,  1  Scho.  &.  Lefr.  204 ;  Wenston  v.  Johnson,  2  Mun.  305. 
Cp)  4  Vin.  Abr.  412. 


HODGES  V.  MULLIKIN.  513 

sure  of  the  facts  in  relation  to  which,  being  called  for  by  the  bill, 
ought  to  have  been  set  forth  by  him  in  his  answer.  Before  he  filed 
his  answer,  it  was  his  duty  to  have  read  and  maturely  considered 
the  bill ;  and  a  very  ordinary  degree  of  care  also  required  of  him 
an  examination  of  the  proceedings,  in  which  he  would  have  found 
the  answer  of  Harwood,  in  which  the  fact  of  the  specified  debts 
being  then  outstanding  was  stated  and  relied  on  as  a  defence,  at 
least  in  preference  to  the  claim  of  the  plaintiff.  Instead  of  which, 
this  defendant  Mullikin,  with  a  reckless  negligence,  which  no  court 
of  justice  ought  to  tolerate,  applied  to  the  debtor,  for  whom  he  was 
surety,  and  to  the  solicitor  of  the  plaintiff,  for  information  ;  and, 
resting  on  what  he  thus  learned,  he  filed  an  answer,  carelessly 
drawn  by  the  solicitor  of  the  plaintiff,  without  ever  having  made 
the  least  inquiry  in  any  other  direction ;  although  he  had  been  thus 
amply  apprised  of  the  necessity  of  doing  so.  If  the  interests  of 
this  defendant  alone  were  jeoparded  ;  and,  if  no  other  person  than 
himself  were  likely  to  suffer  by  letting  this  decree  stand,  I  certainly 
could  not  open  or  modify  it  in  any  one  single  particular.  He, 
who  has  been  so  egregiously  negligent  of  his  own  rights,  can  have 
no  claim  to  a  rehearing,  and  a  repetition  of  that  litigation  which 
he  has  so  carelessly  suffered  to  be  terminated  to  his  disadvantage. (9) 
But,  from  the  matters  now  disclosed,  and  for  this  purpose  estab- 
lished, it  appears,  that  there  are  other  views  of  this  case,  and  other 
consequences  likely  to  arise  from  this  decree  as  it  now  stands,  than 
those  which  relate  exclusively  to  the  defendant  Mullikin,  and  the 
injury  which  he  alone  may  probably  sustain.  The  creditors,  or 
cestui  que  trusts  under  the  deed  of  the  7th  of  April  1810,  are  not 
parties  to  this  decree  ;  and,  therefore,  their  rights  cannot  be  bound 
by  it ;  but  nevertheless,  if  it  is  executed  as  it  now  stands,  their 
interests  may  be  greatly  embarrassed,  materially  injured,  or  perhaps 
in  some  measure  wholly  sacrificed.  If  the  real  estate  is  sold  under 
it,  the  parties  with  whom  they  may  have  to  deal  will  be  varied  and 
multiplied  ;  their  case  maybe  made  more  complex  and  difficult ;  and 
a  sale  of  the  personal  property  will  be  attended  with  at  least  the  same 
consequences  ;  and,  in  addition,  it  maybe  thereby  removed  entirely 
beyond  their  reach.  Besides,  this  decree  upon  the  proceedings  as 
they  now  stand,  would  most  grievously  mislead  a  purchaser  under  it. 
He  would  be  warranted  in  concluding,  that  the  property  had  been 
discharo:ed  from  the  incurabnuice  of  the  deed  of  trust ;  because  the 


(<7)  Fiiiley  v.  Bank  U.  S.,  11  Wheat.  304. 
65 


514  HODGES  V.  MULLIKIN. 

court  itself  had  acted  upon  that  belief,  which  it  was  authorized  to 
edduce  from  the  answer  of  Mullikin  and  the  absence  of  any  proof 
to  the  contrary  ;  when  in  fact  it  had  not  been  so  released  and 
could  not  be  protected  against  that  incumbrance,  because  those 
creditors  had  not  been  made  parties. (r) 

According  to  these  views  of  the  case,  and  looking  to  these 
consequences,  it  is  perfectly  evident,  that  this  decree,  if  suffered  to 
stand  and  be  executed,  may  work  material  injury  to  those  who 
ought  to  tiave  been  made  parties  to  it,  and  who  have  never  been 
called  upon  or  heard  in  any  way  :  and  as  to  purchasers,  it  may 
operate  as  an  instrument  of  deception  and  fraud.  I  feel  it  to  be 
my  duty,  as  far  as  practicable,  to  prevent  any  proceeding  of  this 
court  from  being  thus  used :  and  not  to  suffer  the  parties  by 
any  contrivance ;  or  by  the  holding  back  of  any  circumstance, 
either  wilfully  or  negligently,  to  make  any  of  the  solemn  acts  of 
the  court  operate  perniciously  and  unjustly  upon  the  rights  and 
interests  of  innocent  persons. (s)  For  these  reasons  therefore  I 
shall  afford  the  parties  an  opportunity  of  rectifying  this  decree ;  and 
for  that  purpose  stay  its  execution  until  further  order. 

A  mere  bill  of  review^  would  not  be  commensurate  to  the  peti- 
tioner's objects  ;  he  must  therefore  be  allowed  to  fde  such  a  bill  as 
will  introduce,  as  parties,  all  the  creditors  named  in  the  deed  of  the 
7th  April  1810,  in  such  a  manner  as  to  bring  their  interests,  in 
connexion  with  those  of  the  present  parties,  fully  before  the  court. 

Whereupon  it  is  ordered,  that  all  further  proceedings  under  the 
decree  of  the  second  day  of  May  1825,  be  and  the  same  are  hereby 
stayed  and  suspended  until  the  further  order  of  this  court.  And 
it  is  further  ordered,  that  the  petitioner  Benjamin  Mullikin  have 
leave  to  file  a  bill,  in  the  nature  of  a  bill  of  review,  as  prayed ; 
whereby  he  shall  make  all  the  parties  to  the  said  decree  parties  to 
the  said  bill,  together  w^ith  the  creditors,  or  their  legal  representa- 
tives, who  are  named  in  the  said  deed  of  the  7th  of  April  1810,  in 
such  a  manner  as  to  bring  the  interests  of  all  the  said  parties,  in 
the  property  mentioned  in  the  said  deed,  fully  before  the  court. 
And  it  is  further  ordered,  tliat  the  said  Benjamin  Mullikin  pay  unto 
the  said  plaintiff  all  the  costs  which  have  accrued  upon  his,  the 
said  Mullikin'Sy  said  petition,  including  this  order,  to  be  taxed  by 
the  register. 


(r)  Finley  v.  Bank  United  States,  11  Wheat.  304  ;  Clifton  v.  Haig,  4  Desau.  330. 
(8)  GifTord  V.  Hort,  1  Scho.  St  Lefr.  396,  399. 


HODGES  V.  MULLIKIN.  51 5 

The  defendant  Benjamin  Mullikin,  on  the  18th  of  November, 
1828,  filed  a  bill  in  the  nature  of  a  bill  of  review  on  oath,  against 
Thomas  Hanvood  of  Ben.,  Richard  Duckett  executor  of  Daniel  Clark, 
and  others ;  in  which,  after  reciting  the  various  newly  discovered  facts 
and  circumstances,  upon  which  he  had  founded  his  claim  to  have  the 
decree  of  the  2d  of  May  1825  reviewed  and  corrected,  he  stated,  that 
the  creditors  for  whose  benefit  the  deed  of  the  7th  of  April  1810  was 
made,  have  a  lien  on  the  property  conveyed  prior  to  that  of  those 
who  now  claim  as  assignees  of  Hodges,  &c.  &c.  To  this  bill  the 
defendants  put  in  their  answers ;  and  by  consent,  on  the  20th  of 
August  1829,  a  decree  was  passed,  directing  the  property  to  be 
sold,  and  it  was  sold  accordingly :  and  the  sale  having  been  finally 
ratified,  the  auditor  reported  a  distribution  of  the  proceeds ;  to 
which  exceptions  were  filed,  and  the  case  was  submitted  on  notes 
by  the  solicitors  of  the  exceptant. 

16th  August,  1831. — Bland,  Chancellor. — The  voucher  of  the 
State's  claim  is  evidently  imperfect.  The  lien  of  the  State  com- 
mences with  the  institution  of  the  suit,  not  merely  with  the  date 
of  the  judgment  ;(^)  and  therefore  if  the  State  has  obtained  these 
judgments,  of  the  13th  of  April  1812,  on  suits  instituted  before 
the  7th  of  April  1810,  the  State  must  have  a  preference  over  the 
creditors  under  the  deed  of  that  date.  And,  if  both  of  the  State's 
judgments  were  in  suits  instituted  since  that  time,  then  it  ought  to 
be  shewn  for  which  the  late  Benjamin  Hanvood  was  liable,  on  his 
bond,  as  surety  for  the  defendant  TJiomas  Harwood  of  Ben. ; 
because  it  is  only  for  that  amount  the  State  can  claim  under 
the  deed  of  the  7th  of  April  1810.  Therefore  it  is  ordered,  that 
this  case  stand  over  with  leave  to  explain  and  perfect  the  voucher 
of  the  State's  claim  ;  and  that  a  copy  of  this  order  be  sent  by 
mail  to  the  attorney  general. 


The  voucher  of  the  State's  claim  was  corrected,  by  which  it 
was  shewn,  that  the  State  was  entitled  to  a  prior  lien,  which  was 
allowed  accordingly. 

{t)  Jones  V.  Jones,  ante,  443. 


516  PHILLIPS  V.  SHIPLEl. 


PHILLIPS  V.  SHIPLEY. 

There  is  no  legislative  enactment  relative  to  the  reference  of  suits  depending  in 
Chancery  to  arbitration.  Such  a  reference  cannot  be  withdrawn  or  revoked  with- 
out the  sanction  of  the  court.  There  must  be  a  decree  upon  an  award  which  is 
fair  and  unambiguous  upon  its  face  ;  and  as  to  which  there  is  no  proof  of  mal- 
practice, &c. 

This  bill  was  filed  on  the  25th  of  January  1828,  in  Baltimore 
County  Court,  by  Isaac  Phillips  jun'r.  and  V/illiam  Shipley  '^nn^r. 
against  Richard  A.  Shipley,  to  have  an  account  of  a  joint  concern, 
in  which  they  had  been  engaged,  in  building  certain  houses  in  the 
city  of  Baltimore ;  and  for  relief,  &c.  On  the  same  day,  and  with- 
out any  answer  having  been  put  in  by  the  defendant,  it  was,  by 
consent,  ordered,  that  the  matter  in  dispute  be  referred  to  the  arbit- 
rament of  Daniel  Kreher,  Joseph  Jameson,  and  Henderson  P.  Low, 
or  any  two  of  them.  On  the  31st  of  May  following  the  arbitrators, 
Jameson  and  Loio,  made  and  returned  an  award. 

The  plaintiffs  filed  a  caveat  or  exceptions  against  the  passing  of 
any  decree  upon  this  award,  in  vrhich  they  assign  various  reasons  ; 
chiefly,  that  they  had  revoked  the  authority  of  the  arbitrators 
before  the  award  was  made ;  that  it  was  uncertain  and  ambi- 
guous upon  its  face ;  and  that  it  was  obtained  by  fraud  and  mal- 
practice in  the  arbitrators  who  made  it.  After  which  the  parties 
filed  sundry  affidavits  in  relation  to  these  exceptions ;  and  on  the 
8th  of  July  1828,  under  the  act  of  1824,  ch.  196,  the  proceedings 
w'ere  removed  to  and  filed  in  this  court. 

iSthJYovember,  1828. — Bland,  Chancellor. — This  case  standing 
ready  for  hearing,  and  the  solicitors  of  the  parties  having  been 
fully  heard,  the  proceedings  were  read  and  considered. 

It  is  quite  obvious,  that  the  acts  of  Assembly  which  allow  cases 
to  be  referred  to  arbitrators  relate  only  to  actions  depending  in  a 
court  of  common  laio  ;[a)  and  whether  the  English  statute  relative 
to  the  determining  of  differences  by  arbitration  ever  was  in  force 
here  does  not  appear  to  have  been  clearly  ascertained. (6)  But 
even  if  that  statute  were  to  be  taken  as  a  part  of  our  law,  it  is  yet 
doubtful  whether  it  could  be  executed  in  cases  to  which  it  was 

(a)  October  177S,  ch.  21,  s.  8  8t  9  ;  17S5,  ch.  80,  s.  11.— (6)  Kilty  Rep.  9  &  10, 
Will.  3,  c.  15 ;  West  v.  Stigar,  1  H.  &  McH.  247,  &4  H.  &  McH.  490. 


PHILLIPS  V.  SHIPLEY.  517 

intended  to  apply,  according  to  the  equitable  jurisdiction  of  the 
Court  of  Chancery  or  not.(c)  Apart  however  from  that  doubt,  it 
is  clear,  that  awards  made  on  references  in  cases  depending  are  not 
awards  to  which  that  statute  relates. (rf)  Whence  it  is  evident, 
that  an  award  made  on  a  reference  in  a  suit  in  equity  has 
not  been  regulated  by  any  legislative  enactment  whatever ;  yet 
it  has  at  all  times  been  held  by  the  courts  of  common  law  and 
equity  in  England,  to  be  within  the  regular  scope  of  their  powers 
to  pass  an  order,  with  the  consent  of  the  parties  to  any  suit  then 
depending,  referring  the  matter  in  controversy  to  arbitration  ;  and  to 
enforce  the  award. (e) 

The  reference  of  cases  depending  in  this  court  to  arbitration,  and 
the  passing  of  decrees  upon  awards  was  common  before  the  revo- 
lution,(y)  and  has  continued  to  be  the  practice  ever  since.  Whether 
there  has  been  any  well  established  and  regular  course  of  proceed- 
ing, in  relation  to  such  references,  does  not  distinctly  appear ;  but,  it 
seems,  that  if  the  award  be  in  any  respect  exceptionable,  it  may, 
on  motion,  and  on  the  fact  being  sufficiently  shewn,  be  set  aside. (o") 
It  is  presumed,  that  this  court  would  set  aside  an  award  returned 
to  it,  upon  any  ground  allowed  to-be. taken  against  an  award  in  a 
court  of  common  law ;  or  upon  any  other  ground, >on  which  a  bill 
might  be  filed  between  the  same  parties  to  have  an  award  vacated.  (A) 
But  if  no  objection  be  made  against  an  award,  then,  according  to  a 
long  standing  rule  and  practice,  either  party  may  apply  for  and 
have  a  decree  passed  in  conformity  to  its  terms. (i) 

Upon  the  general  principles  by  which  this  court  is  governed, 
and  by  analogy  to  the  express  provisions  of  the  acts  of  Assembly 
regulating  similar  references  in  actions  at  common  law,  a  party 
cannot  be  permitted  to  withdraw  from  or  to  revoke  a  reference 
made  by  an  order  of  this  court,  with  the  consent  of  parties,  without 
the  sanction  and  order  of  this  court  itself  allowing  it  to  be  done.(j) 


((?)  2  Mad.  Chan.  712.— (rf)  Lucas  v.  Wilson,  2  Burr.  701  ;  Lansdale  v.  Littledale, 
2  Ves.  jun.  453. — (e)  Lucas  v.  Wilson,  2  Burr.  701 ;  Dick  v.  Milligan,  2  Vcs.  jun.  24 
2  Fow.  Exch.  Pra.  350.— (/)  Warinc^  y.  Mullan,  1771 ;  Chan.  Pro.  lib.  W.  K.  No.  l' 
fol.  6, 28, 4S,  &c.— (g)  Nevan  v.  Pinkncy,  17S7,  Chan.  Pro.  lib.  S.  H.  H.  letter  B.  fol.  Q. 
{h)  Goldsmith  v.  Tilly,  1  H.  &  J.  3G1 ;  Harris  v.  Dorsey,  1  H.  &  J.  416  ;  Cromwell 
V.  Owings,  6  H.  &,  J.  10  ;  Heuitt  v.  The  State,  6  H.  &.  J.  95.— (i)  Brawner  v.  Gordon, 
17th  March  1789,  Chan.  Pro.  lib.  S.  H.  H.  let.  B.  fol.  597;  Hardy  v.  Howard,  J\is! 
16th  July,  1794.— (»  Crawshay  v.  Collins,  1  Swan.  41  ;  Harcourt  v.  Ramsbottom' 
1  Jac.  &  Walk.  491. 


518  PHILLIPS  V.  SHIPLEY. 

In  this  case  there  has  been  no  such  regular  and  solemn  revocation. 
The  award  returned  appearing  to  be  sufficiently  fair  and  unambi- 
guous upon  its  face  to  afford  a  proper  foundation  for  a  decree  •,{k) 
and  the  affidavits  read  in  evidence  being  entirely  too  loose  and 
contradictory  to  sustain  the  allegation  of  malpractice  in  the  arbitra- 
tors ;  the  caveat  must  therefore  be  overruled  and  the  award  con- 
firmed. 

Whereupon  it  is  decreed,  conformably  to  the  said  award,  that 
the  property  in  the  proceedings  mentioned  situate  in  Pratt-street 
in  the  city  of  Baltimore  be  held  as  the  property  of  William  Ship- 
ley junh.  and  Isaac  Phillips  jun'r.  and  their  legal  representatives 
and  assigns,  as  tenants  in  common  ;  and  it  is  further  ordered,  that 
the  property  in  the  bill  mentioned  situate  in  Saratoga-street  in  the 
city  of  Baltimore  be  held  by  the  said  William  Shipley  jun'r,  Isaac 
Phillips  jun'r.  and  Richard  A.  Shipley,  their  legal  representatives 
and  assigns,  as  tenants  in  common  ;  and  it  is  further  ordered,  that 
the  property  on  Franklin- street  in  the  bill  mentioned  be  held  as 
the  sole  and  exclusive  property  of  the  said  Richard  A.  Shipley,  his 
legal  representatives  and  assigns.  And  it  is  further  ordered,  that 
the  said  plaintiffs  William  Shipley  jun'r.  and  Isaac  Phillips  jun'r. 
pay  unto  the  said  defendant  Richard  A.  Shipley  the  sum  of  three 
hundred  and  fifty-five  dollars  and  eighty-nine  cents,  with  legal 
interest  thereon  from  the  31st  day  of  May  last  until  paid.  And^it 
is  further  ordered,  that  each  party  pay  his  own  costs  to  be  taxed 
by  the  register ;  but  the  costs  of  the  award,  as  estimated  by  the 
arbitrators  and  endorsed  on  the  back  of  the  award,  are  hereby 
rejected  as  forming  no  part  thereof. 

(fc)  Tillard  v.  Fisher,  3  H.  &  McH.  118. 


IGLEHART  r.  ARMIGER.  519 


IGLEHART  v.  ARMIGER. 

The  vendor's  equitable  lien  an  incident  to  a  contract  of  purchase  :  its  peculiar  nature 
and  character :  two  equitable  liens  upon  the  same  estate  may  well  exist  together. 

An  equitable  lien,  not  being  assignable  in  its  nature,  is  extinguished  by  the  assign- 
ment of  the  bond  or  note  given  for  the  payment  of  the  purchase  money. 

An  assignment  or  bequest  of  debt  carries  with  it  all  the  securities. 

The  assent  of  parties  cannot  authorize  the  passing  of  a  decree  for  which  the  case 
set  forth  in  the  bill  affords  no  sufficient  foundation.  "^ 

This  bill  was  filed  on  the  30th  of  September  1828,  by  James 
Iglehart,  Robert  S.  Bryan^  and  Willimn  Mc Parian ^  against  Benja- 
min Armiger^  Richard  G.  Hutton,  Richard  D.  Hill,  Rezin  Estep, 
John  S.  Selby,  and  JVicholas  I.  Watkins.  The  object  of  the  bill 
was  to  have  a  tract  of  land  which  had  been  sold  by  the  plaintiff 
Iglehart,  as  trustee  under  a  decree  of  this  court,  and  purchased  by 
the  defendant  Armiger,  resold  for  the  payment  of  the  balance  of 
the  purchase  money  ;  on  the  ground,  that  the  equitable  lien  of  the 
vendor  still  subsisted  in  full  force  and  unimpaired.  The  bill 
stated,  that  the  bonds,  taken  by  the  trustee  Iglehart  to  secure  the 
payment  of  the  purchase  money,  had  been  assigned,  and  were 
then  held  by  the  plaintiff  JMcParlan,  as  the  assignee  thereof;  and, 
that  the  defendants  Selby  and  Watkins  had  agreed  to  guaranty  their 
payment.  Whereupon  the  plaintiffs  prayed,  that  the  land  might 
be  sold  for  the  payment  of  the  balance  of  the  purchase  money  which 
had  been  secured  by  those  bonds,  and  for  general  relief. 

The  defendants,  Selby  and  Watlcins,  by  their  answer,  admitted 
the  facts  as  stated  in  the  bill ;  but  insisted,  that  a  decree  should 
pass,  in  the  first  instance,  for  the  sale  of  the  land ;  because  they 
were,  by  their  guaranty,  only  responsible  upon  an  eventual  defici- 
ency of  the  land  and  the  persons  bound  before  them. 

None  of  the  other  defendants  having  appeared,  as  required  by 
the  subpcena  which  had  been  served  on  them,  an  interlocutory 
decree  was,  on  the  11th  of  December  1828,  passed  against  them, 
and  a  commission  issued,  under  which  testimony  was  taken  and 
returned.     Upon  which  the  case  was  submitted. 

IQth  January,  1829. — Blaxd,  Chancellor  — This  case  standing 
ready  for  hearing,  and  having  been  submitted  on  the  notes  of  the 
plaintiffs'  solicitor,  the  proceedings  were  read  and  considered. 

The  circumstances  and  facts  are  these.  Joseph  Selby  died  intes- 
tate, seized  of  a  certain  tract  of  land   which  descended  to    his 


520  IGLEHART  v.  ARMIGER. 

children.  One  of  whom,  Jemima,  with  her  husband  John  Cross, 
and  others,  filed  a  bill  in  this  court,  alleging,  that  the  estate,  which 
had  so  descended  to  them,  would  not  admit  of  partition  without 
loss ;  and  therefore  prayed,  that  it  might  be  sold  and  the  proceeds 
divided  among  them.  It  was  decreed  accordingly,  on  the  12th  of 
December  1816  ;  and  Thomas  Sellman  was  appointed  trustee  to 
make  the  sale.  In  pursuance  of  which  authority  he  reported,  that 
he  had  sold  the  property  to  John  Cross,  who  had  given  bond  as 
required  for  the  purchase  money  ;  and,  on  the  29th  January  1817, 
an  order  was  passed  to  confirm  the  sale  unless  cause  shewn.  On 
the  8th  of  March  following  Johji  Cross,  the  purchaser,  died  intes- 
tate, and  without  having  paid  the  purchase  money,  leaving  three 
minor  children,  his  heirs,  to  whom  the  real  estate  so  purchased 
descended. 

The  minor  heirs  of  Cross,  by  their  next  friend,  petitioned  the 
legislature  for  a  special  act,  authorizing  the  sale  of  the  interest  so 
purchased  by  their  father,  in  order  to  save  the  fee  simple  estate 
which  had  descended  to  them,  and  also  the  personal  property, 
agricultural  implements,  &c.,  w^hich  were  necessary  for  their  sup- 
port :  alleging,  that  the  Chancellor,  on  application,  had  declared 
it  to  be  his  opinion,  that  he  had  no  authority  to  decree  in  such 
case  :  that  is,  as  is  presumed,  that  he  had  no  authority  to  decree, 
at  their  instance,  that  the  assets  should  be  so  marshalled  ;  and 
upon  this  ground,  as  it  seems,  the  legislature,  on  the  20th  of 
January  1818,  passed  an  act,(a)  authorizing  Thomas  Sellman  as 
trustee  to  sell,  at  public  sale,  upon  such  terms  as  the  Chancellor 
should  direct,  all  the  equitable  interest  in  the  real  estate  which  had 
so  descended  to  the  minor  children  of  the  late  John  Cross  ;  and, 
from  the  proceeds,  to  pay  the  purchase  money ;  and  the  balance  to 
be  disposed  of  as  the  Chancellor  should  direct ;  or  to  pass  to  those 
children  as  realty ;  and,  if  Sellman  the  trustee  should  die,  the 
Chancellor  was  authorized  to  appoint  a  successor. 
'  In  pursuance  of  this  act  of  Assembly,  Sellman,  on  the  27th  of 
the  same  month,  filed  his  petition  to  the  Chancellor,  who,  on  the 
same  day,  passed  a  decree  accordingly  specifying  the  terms  of 
sale.  Upon  which  Sellman,  on  the  6th  of  October  1818,  made  a 
sale  of  the  equitable  interest  of  the  children  of  Cross  to  Benjamin 
Armiger,  by  whom  a  part  of  the  purchase  money  was  paid,  and 
the  residue  secured  by  bonds  and  a  note  with  surety,  which  were 

(rt)  1S17,  ch.  46. 


IGLEHART  v.  ARMIGER.  521 

made  payable  "  to  Thomas  Sellman  trustee  for  the  sale  of  the  real 
estate  of  John  Cross  deceased."  After  which,  and  before  he  had 
reported  the  sale,  Sellman  died,  and  James  Iglehart  jun'r.  was 
appointed  to  succeed  him  as  trustee ;  who  made  a  report  of  the 
sale,  and  that  he  had  the  money  received  and  also  the  bonds  taken 
then  in  his  hands.  This  sale  was  finally  ratified  on  the  19th  of 
March  1819 ;  and,  by  an  order  of  the  28th  of  April  following,  the 
proceeds  were  made  payable  to  this  same  James  Iglehart^  who  was 
also  appointed  trustee  in  the  place  of  Sellman  under  the  decree  of 
the  12th  of  December  1816,  leaving  a  balance  still  due  from  the 
late  John  Cross'^s  estate  to  the  late  Selhyh  estate,  as  shewn  by  the 
statement  taken  from  the  report  of  the  late  Thomas  Sellman.,  who 
had  made  and  reported  a  sale  under  the  decree  in  that  case,  which 
had  not  been  finally  ratified  until  the  27th  of  January  1818. 

In  which  suit,  for  a  partition  of  the  late  Joseph  Selby^s  estate, 
the  auditor,  on  the  1st  of  April  1818,  made  and  reported  a  state- 
ment of  a  distribution  of  the  proceeds  of  sale,  allotting  one  share 
of  the  estate  of  the  late  Joseph  Selby  which  had  been  sold  to  John 
Cross,  to  the  said  John  and  Jemima  his  wife,  which  was  ratified 
on  the  same  day.  On  the  29th  of  April  1819  Iglehart  the  trustee, 
by  petition,  applied  to  be  directed  as  to  whom  the  share  awarded  to 
John  and  Jemima  was  to  be  paid.  Upon  which  the  Chancellor 
passed  the  following  order. 

"  1st  May,  1819. — Kilty,  Chancellor. — On  considering  the 
within  application,  I  am  of  opinion,  that  the  part  of  the  proceeds 
of.  Joseph  Selby''s  estate,  allotted  to  John  Cross  and  Jemima  his 
wife,  is  to  be  paid  to  Jemima  Cross,  who  has  survived  John  Cross, 
inasmuch  as  it  was  not  received,  or  assigned,  or  applied  by  him  in 
his  lifetime.  Having  been  the  purchaser,  if  he  had  settled  up  the 
other  parts,  he  might  have  settled  his  proportion  with  the  trustee 
by  discount,  or  possibly  might  have  settled  that  part  only  with 
him.  The  case  must  now  be  considered,  as  to  her  right,  in  the 
same  manner  as  if  any  other  person  had  been  the  purchaser,  (c) 
But  the  trustee,  in  paying  the  parts  allotted  under  the  orders  of  the 
1st  and  29th  of  April  1819,  must  pay  only  a  rate  or  proportion  to 
each,  according  to  the  net  sum  received  from  the  sale  of  J.  Crosses 
real  estate,  until  he  recovers  the  balance  on  his  bond.  The  present 
trustee  is  allowed  one-third  of  the  commissions  of  182  dollars,  pay- 
ing two-thirds  to  the  representatives  of  T.  Sellman.'''' 

(z)  Jones  V.  Jones,  ante,  454. 
66 


522  IGLEHART  v.  ARMIGER. 

Two  of  the  bonds  which  had  been  taken  from  Armiger,  after 
several  partial  payments  on  them,  were,  on  the  28th  of  December 
1824,  by  James  Iglehart,  as  trustee  for  the  sale  of  the  real  estate  of 
Johii  Cross  deceased,  assigned  to  Joh?i  S.  Selby  one  of  the  heirs  of 
the  late  Joseph  Selby,  and  to  whom  a  portion  of  his  estate  had  been 
awarded  by  the  auditor's  report,  and  the  order  thereon  of  the  1st 
of  April  1818.  And,  by  Selby,  these  bonds  were  assigned  to 
Robert  S.  Bryan  ;-  and,  by  him  assigned  to  William  McParlan. 
JYicholas  J.  Watkins  and  John  S.  Watkins  undertook  to  guaranty 
the  payment  of  these  bonds.  Upon  all  which  this  bill  was  filed. 

It  was  urged,  that  the  equitable  lien  held  by  the  court,  arising 
from  the  sale  under  its  decree,  or  by  the  late  Thomas  Sellman,  and 
his  successor,  as  trustee  under  the  act  of  assembly,  was  assignable 
in  its  nature ;  that  it  has  been  assigned ;  that  it  was  necessarily 
associated  with  the  bonds  given  by  the  purchaser  Armiger,  and  his 
sureties,  and  virtually  passed  along  with  the  assignment  of  them 
from  Iglehart  to  Selby,  to  Bryan  and  to  McParlan. 

An  equitable  lien  is  one  of  a  very  peculiar  character.  It  is  not 
like  the  common  law  lien  of  factors,  innkeepers  and  others,  asso- 
ciated with  and  entirely  dependent  upon  the  actual  possession  of 
the  property  on  which  it  is  a  tie  ;  it  is  not  like  a  general  judicial 
lien,  which  springs  into  existence  in  favour  of  a  party  w^ho  obtains 
a  judgment,  which  enables  him  to  take  the  lands  of  the  defendant 
in  execution,  and  continues  as  an  incident  to  such  unsatisfied  judg- 
ment to  which  the  statute  has  expressly  made  all  the  lands  of  the 
defendant  liable ;  it  is  not  like  the  lien  of  the  State  upon  the  pro- 
perty of  its  debtor,  founded  as  well  on  positive  enactment  as  on 
principles  of  common  law,  by  which  the  interests  of  individuals 
are  postponed  in  favour  of  those  of  the  public  ;  it  is  not  precisely 
of  the  nature  of  the  lien  given  by  the  civil  law  to  those  called 
privileged  creditors,  such  as  nautical  salvors,  material  men,  &c. ;  nor 
is  it  altogether  like  a  common  mortgage,  although  it  operates  and 
is  treated,  in  many  respects,  as  a  mortgage.  It  differs  from  all 
these  in  this,  that,  if  it  exists  at  all,  it  must  originate  with,  and  as 
an  incident  of  the  contract  of  purchase  itself;  that  it  is  not  always 
a  part,  or  principle  of  the  contract  as  in  the  case  of  a  lien  given 
by  the  civil  law,  to  privileged  creditors ;  that  it  is  not  founded  on 
any  express  stipulation  ;  that  it  is  not  dependent  on  having  pos- 
session ;  that  it  is  not  deduced  from  any  statute  ;  and  that  it  does 
not  rest  on  any  general  principles  of  common  law. 

This  doctrine  in  relation  to  equitable  liens,  it  is  said,  has  been 


IGLEHART  v.  ARMIGER.  523 

probably  derived  from  the  civil  law  as  to  goods, (6)  and  it  seems, 
that  such  a  lien  upon  goods  is  a  personal  right  Avhich  cannot  be 
transferred  to  another. (c)  But  in  whatever  way  it  may  have  origi- 
nated, it  is  now  well  settled,  that  an  equitable  lien  arises  from  the 
principle  of  equity,  that  the  purchaser  of  real  estate  ought  not  to 
be  allowed  to  hold  it,  as  his  own,  until  the  vendor  has  been 
fully  satisfied ;  and  that  it  is  a  vcndor^s  security  and  privilege. 
It  is  indispensably  necessary  to  the  existence  of  such  a  lien,  that 
the  parties  should  stand  in  the  relation  towards  each  other  of  vendor 
and  vendee  of  real  estate,  the  purchase  money  of  wdiich  has  not 
been  fully  paid.  If  that  relationship  is,  in  any  manner  whatever, 
put  off,  altered,  or  relinquished,  an  equitable  lien  either  cannot 
arise,  or  will  be  destroyed.  The  pure  relationship  of  creditor  and 
debtor,  or  of  borrower  and  lender,  is  incompatible  with  the  existence 
of  an  equitable  lien,  excludes,  or  extinguishes  it.  In  a  contract 
of  loan,  the  relation  of  creditor  and  debtor  attaches  independ- 
ently of  any  securities  for  the  payment  of  the  money,  such  as  a 
mortgage,  bond,  or  note :  which,  when  given,  are  the  mere  acci- 
dental circumstances  of  a  contract  in  all  respects  complete  with- 
out them.  The  chose  in  action  is  assignable  in  its  nature,  in  equity 
at  least,  independently  of  those  evidences  and  se(iurities  of  it.  But 
in  a  purchase  of  real  estate  payment  is  an  essential  part  of  the 
contract ;  hence  it  is  an  established  principle  of  equity,  that  the 
vendor  holds  a  lien  upon  the  estate  to  secure  the  payment  of  the 
purchase  money ;  and  this  lien  is  an  incident  uniformly  arising 
from,  and  associated  w^ith  such  a  contract,  (rf)  It  exists  in  all  cases, 
unless  a  manifest  intention,  that  it  should  not  exist,  appears  ;(e)  and 
it  continues  until  it  has  been,  in  some  way,  impliedly  or  positively 
waived ;   all  which  it  lays  upon  the  vendee  to  shew.(y) 

In  the  case  of  a  purchase  of  a  real  estate  the  equitable  lien 
arises  as  an  incident  thereto,  and  can  only  exist  together  with  it, 
as  principal  and  incident.  In  the  case  of  loan  the  debt  is  the 
principal,  and  the  bond,  note,  or  mortgage  are  only  the  accidents 
or  incidents  to  it.  In  both  cases  the  extinguishment  of  the  prin- 
cipal destroys  its  incidents.  A  purchase  may  be  made,  or  a  debt 
may  exist  w^ithout  an  equitable  lien,  or  a  bond,  note,  or  mortgage 


{b)  Maclcreth  v.  Symmons,  15  Ves.  .344  ;  Walker  v.  Preswiclc,  2  Ves.  622. 
(c)  Daiibigny  v.  Duval,  5  T.  R.  606.— (rf)  Ex  parle  Gvrynnc,  12  Ves.  379.— (e)  Mack- 
reth  V.  Symmons,  15  Ves.  341.— (/)  Mackreth  v.  Symmons,  15  Ves.  330;  Sug. 
Vend.  &  Pur.  3S6;  Pow.  Mort.  1062. 


524  IGLEHART  v.  ARMIGER. 

as  its  incident.  A  bond,  note,  or  mortgage  may  however  be 
executed  as  being,  in  itself,  the  creator,  evidence,  and  incident  of 
a  debt ;  but  an  equitable  lien  cannot  be  thus  made  and  executed 
apart  from,  and  independently  of  a  contract  of  purchase,  or  as 
being,  in  itself,  the  evidence  of  a  purchase.  Hence,  it  is  perfectly 
evident,  that  a  bond,  note,  or  mortgage  may  be,  in  itself,  at  once 
the  principal  and  incident ;  it  may  create  a  debt,  and  thus  estab- 
lish the  principal  of  which  it  is  the  evidence  and  incident ;  but  an 
equitable  lien  is  so  purely  an  incident,  that  it  cannot  be  called  into 
existence  in  any  other  manner  than  as  an  attendant  upon  a  contract 
of  purchase ;  and  'when  that  is  satisfied  or  substantially  waived, 
the  equitable  lien  is  gone. 

It  is  true,  as  a  general  rule,  that  the  principal  carries  with  it  all 
its  incidents,  but  not  the  reverse.  AccessoriuTn  non  ducit,  sed  sequi- 
tur  suuin  principale.[g)  And  therefore  if  the  debt  be  in  any  man- 
ner distinctly  and  legally  assigned  ;  the  assignment  carries  with  it 
the  bond,  note,  or  mortgage  as  its  incident ;  because  the  transfer 
of  the  money  carries  with  it  the  mortgage  interest  in  the  land,  and 
all  other  securities  which  were  given  for  the  purpose  of  assuring 
its  payment.  This  may  be  done  by  parol  notwithstanding  the  sta- 
tute of  frauds.  So  too,  if  it  be  the  intent  of  the  mortgagee  to 
give  the  debt  only,  he  may  do  so  by  a  will  not  attested  by  three 
witnesses ;  and  the  legatee  may  in  the  name  of  the  heir  obtain,  in 
equity,  all  the  benefit  of  the  mortgage  :  but  if  his  intention  was  to 
devise  it  as  land,  then  his  will  must  be  duly  attested  for  that  pur- 
pose. The  reason  of  this  is,  that  a  gift,  assignment,  or  bequest 
of  the  principal  carries  with  it  all  its  beneficial  incidents.  (A) 

But  an  equitable  lien  is  an  encumbrance  upon  land,  which  can 
only  be  held  by  a  vendor ;  and  although  assets  may  be  mar- 
shalled, so  as  to  put  a  vendor  altogether  upon  his  equitable  lien, 
for  the  benefit  of  other  creditors,  yet  no  third  person  can,  as  assignee 
of  the  vendor,  derive  any  benefit  from  such  lien  ;('i)  nor  can  it,  like 
a  bond  or  mortgage,  be  assigned  ;  because  it  is  not  expressed  in 
writing,  or  in  any  separate  contract ;  but  exists  only  as  an  insepa- 
rable equitable  incident  of  the  contract  of  purchase ;  and  is  raised 
by  construction  of  equity,  in  favour  of  the  vendor  only.  To 
allow  it  to  pass  by  an  assignment  of  the  claim  for  the  purchase 

(g)  Co.  Litt.  151,  152  ;  2  Blac.  Com.  176.— (A)  Greeny.  Hart,  1  John.  Rep.  580  ; 
Jackson  v.  Willard,  4  John.  Rep.  41 ;  Runyan  v.  Mersereau,  11  John.  Rep.  534; 
Martin  v.  Mowlin,  2  Burr.  978  ;  Row.  Mort.  140,  144,  266,  429.— (t)  Mackreth  v. 
Symmons,  15  Vcs.  S39,  note ;  Sug.  Vend.  St  Pur.  395. 


IGLEHART  v.  ARMIGER.  535 

money ;  or  by  a  transfer  of  the  bonds,  or  notes,  given  as  a  security 
for  the  payment  of  the  purchase  money,  would  be  of  the  most 
ruinous  consequence  to  titles  to  real  estates.  It  would  completely 
break  down  the  statute  of  frauds,  and  all  the  acts  of  Assembly 
requiring  conveyances  of  lands  to  be  recorded  ;  according  to  which 
acts  no  estate  for  above  seven  years  in  any  land  shall  pass  or  take 
effect,  unless  the  written  conveyance,  by  which  it  is  made,  be  within 
six  months  thereafter  put  upon  record,  and  thus  made  accessible 
to  all  concerned.  A  common  bond,  or  a  mere  promissory  note 
passing  with  a  blank  endorsement  from  hand  to  hand,  might  carry 
with  it  an  incumbrance  upon  a  real  estate  of  the  most  binding 
and  extensive  nature.  Besides,  if  such  assignable  or  negotiable 
instruments  were  permitted  to  carry  with  them  any  such  equitable 
lien,  aliens  and  others,  incapable  of  directly  taking  any  such 
estate,  might  thus  acquire  and  hold  a  much  larger  interest  in  land 
than  is  allowed  by  our  law.(j)  This  certainly  ought  not  to  be 
permitted ;  and  there  is  no  authority  sanctioning  any  such 
principle.  (A;) 

But  where  there  has  been  a  bond  or  promissory  note  given  for 
the  payment  of  the  purchase  money,  which  does  not  impair  the 
equitable  lien,  the  assignment  of  such  security  must  operate  as 
a  tacit  relinquishment  of  the  equitable  lien ;  because  the  assignee 
and  vendee  are  thereby  placed  in  the  relationship  of  creditor  and 
debtor ;  and  the  vendor  having  thus  finally  waived  the  right  to 
enforce  his  equitable  lien,  it  can  never  again  be  revived  in  his 
favour  ;  unless  his  privilege  as  vendor  has  been  kept  up  and  con- 
tinued by  the  holding  of  him  answerable  as  assignor  of  the  securi- 
ties given  for  the  payment  of  the  purchase  money. (/) 

Although  it  is  admitted,  that  no  adjudged  case  can  be  found,  in 
the  English  books  to  sustain  the  position,  that  an  equitable  lien 
may  be  assigned,  or  that  it  virtually  passes  along  with  the  assign- 
ment of  the  bonds  given  for  the  payment  of  the  purchase  money  : 
yet  it  is  said,  that  the  principle  has  been  sanctioned  by  the  deci- 
sions of  this  court. 

The  case  principally  relied  on  is,  that  of  Brewer  and  Mackuhin 
V.  JVicholls,  8th  July  1824.  In  that  case  Arnold  was  the  vendor; 
and  he,  as  such,  transferred  to  Brewer  and  Mackuhin  all  the  interest 
he  held  in  the  land,  subject  to  J\icholls^s  contract  as  vendee  ;  and 

(i)  17S4,  ch.  53;   Hughes  v.  Edwards,  9  Wheat.  496.— (/c)    Sug.  Vend.  &  Pur. 
396.— (Z)  White  v.  Williams,  1  Paige,  502 ;  Wilson  v.  Graham,  5  Mun.  297. 


526  IGLEHART  v.  ARMIGER. 

also  transferred  to  Brewer  and  Mackubin  the  debt  due  from  JVic/iolls 
to  him  :  to  which  assignment  A'"icJiolls  was  privy  and  assented. 
By  virtue  of  all  which  Brewer  aiid  Mackubin  became,  in  fact,  the 
vendors  to  whom  Jficliolls  the  vendee  stipulated  to  pay  the  pur- 
chase money.  The  whole  contract  and  relationship  of  vendor  and 
vendee  were  thus  passed  over  to  the  new  parties,  and  therefore  it 
was  held,  that  the  assignment  W'ith  the  express  assent  of  all  the 
original  parties  carried  with  it  the  incident  equitable  lien.(?n)  But, 
in  the  case  under  consideration,  it  is  not  pretended,  that  any  of 
these  assignees  were  ever,  in  any  manner  or  form,  to  be  considered 
as  the  vendors  ;  or  that  the  interest  in  the  land  had  been  assigned 
to  them  subject  to  Jirmiger''s  contract.  These  assignees  merely 
took  the  chose  in  action  with  the  bonds  as  the  evidence  of  it ;  and 
now  contend,  that  the  assignment  so  made  to  them  has,  in  itself, 
given  to  them  the  equitable  lien  originally  held  by  the  vendor. 
These  cases  are  materially  different,  and  the  one  cannot  in  any 
manner  be  applied  to  sustahi  the  position  now  contended  for  in 
the  other. 

The  case  of  Hollingsworth  v.  Bowie  and  others,  20th  June  1824, 
has  also  been  relied  on.  But  no  reasons  were  given  for  the  deci- 
sion, and  it  seems  to  me,  that  the  judgment  of  the  Chancellor  must 
have  been  founded,  not  upon  the  assignable  nature  of  an  equitable 
lien,  but  upon  the  ground,  that  Ray,  the  surety  of  Boivie  the  ven- 
dee, wnth  Barber,  the  holder  of  the  note,  had  a  right  to  be  substi- 
tuted in  the  place  of  the  vendor.  (71)  The  case  of  Randall  and 
others  v.  White  and  others,  3d  August  1825,  has  also  been  spoken 
of.  But  it  does  not  appear,  that  any  such  question,  as  that  of 
the  assignable  nature  of  an  equitable  lien,  could  well  have  arisen 
in  it ;  and  I  am  confident,  no  such  point  was  ever  made  in  that 
case. 

It  will  be  proper,  however,  to  recollect,  that  this. land  has  been 
twice  sold  under  the  authority  of  this  court ;  first,  under  the  decree 
of  December  1816,  by  which  the  court  reserved  the  legal  title  with 
an  equitable  lien  as  against  the  purchaser  John  Cross  ;  and  secondly, 
under  the  decree  of  January  1818,  by  which  the,  equitable  estate 
of  John  Cross  was  sold  with  the  reservation  of  an  equitable  lien  as 
against  the  purchaser  Benjamin  Armiger.  A  doubt  has  been 
expressed  whether  an  equitable  lien  can  arise  as  an  incident  to  the 


(ffi)  Mackrcth  v.  Symmons,  15  Ves.  330. — (n)  Ghiselin  v.  Ferguson,  4  H.  &  J. 
522;  White  v.  Williams,  1  Paige,  502. 


IGLEHART  v.  ARMIGER.  527 

sale  of  a  mere  equitable  interest,(o)  such  as  that  sold  to  Armiger. 
But  I  can  see  no  ground  for  any  such  distinction  between  the  sale 
of  a  legal  and  an  equitable  estate.  The  lien  is  given  to  the  vendor, 
not  because  of  the  quantity  of  interest,  or  the  nature  of  the  estate 
sold  ;  but,  because  it  would  be  unjust  that  the  purchaser  should  hold 
that  absolutely  for  which  he  had  not  paid ;  and  because,  until  the 
whole  purchase  money  has  been  paid,  the  contract  of  purchase 
cannot  be  considered  as  complete.  Now  these  reasons  apply  as 
obviously,  and  as  satisfactorily  to  the  sale  of  an  equitable  as  to 
the  sale  of  a  legal  estate.  The  existence  of  two  equitable  liens 
upon  the  same  real  estate  can  be  in  no  respect  more  incompatible 
than  the  contemporaneous  existence  of  two  encumbrances  of  any 
other  description.  They  must  be  permitted  to  take  according  to 
their  priorities  and  other  equities,  as  usually  adjusted  by  this  court. 
There  may  be,  perhaps,  no  case  like  this  to  be  found  in  the  Eng- 
lish books  ;  but  it  has  often  occurred  in  this  court,  that  an  equitable 
lien  has  been  held  to  arise  on  a  sale  of  a  mere  equitable  estate, 
which  lien  has  been  enforced  accordingly,  (p) 

There  is  then  nothing  in  the  authorities  adduced,  which  shews 
it  to  have  been  held  by  this  court,  either  that  an  equitable  lien  was 
in  any  manner  assignable  unconnected  with  the  land  itself  w^hich 
was  the  subject  of  the  contract  of  purchase;  or  that  an  assign- 
ment in  any  form  of  the  bond  or  note  given  to  secure  the  pay- 
ment of  the  purchase  money  carries  with  it  the  equitable  lien  held 
by  the  vendor  or  assignor  of  such  bond  or  note. 

I  will  here  take  occasion  to  repeat,  that,  in  all  sales  under  a 
decree,  the  court  itself  must  be  considered  as  the  vendor  ;  since  the 
contract  is  made  with  the  court,  through  the  instrumentality  of  its 
trustee  or  agent,  for  the  benefit  of  all  concerned.  (9)  And  con- 
sequently, the  equitable  lien,  thus  held  by  the  court,  may,  and  has 
always  been  treated  as  such  a  lien  would  be  considered  if  held 
by  a  natural  person ;  but  which  can  in  no  manner  whatever  be 
affected  by  any  act  of  the  trustee  not  expressly  sanctioned  by  the 
court  itself.  The  powers  and  duties  of  a  trustee  are  always  speci- 
fied in  the  decree,  or  orders  by  which  his  acts  are  directed.  He 
was,  in  this  instance,  directed  to  collect  and  distribute  the  purchase 
money,  by  the  order  of  the  1st  of  April  1818,  and  by  the  act  of 


(0)  Bayley  v.  Greenleaf,  7  Wheat.  50. — {p)  Ghiselin  v.  Fergusson,  4  H.  &.  J.  522; 
Pinkney  v.  Mayo,  MS.  19th  April  1814,  &  14th  April  1821.— («/)  Savile  v.  Savile, 
1  P.  Will.  747;  Ex  parte  Minor,  11  Ves.  561. 


528  IGLEHART  v.  ARMIGER. 

1817,  ch.  46.  But  it  does  not  appear,  that  he  was  in  any  manner 
authorized  to  assign  the  bonds  ;  and  therefore,  I  do  not  see  upon 
what  ground  he  now  assumes  the  right  to  appear  here  as  a  plain- 
tiff, and  tell  this  court  of  his  unauthorized  dealing  with  its  business. 
But  suj^pose  the  court  could  have  so  ordered  by  the  provisions  of 
the  act  of  1817,  ch.  46,  and  he  had  been  directed  to  assign  those 
bonds,  that  assignment  would  not  have  carried  with  it  a  lien 
upon  the  land  until  they  were  paid  ;  or  any  right  to  resort  to 
him,  or  the  court,  in  case  they  had  not  been  paid  after  the  assignee 
had  used  due  diligence  to  recover  the  amount  secured  by  them. (5) 
The  acts  of  Assembly  giving  a  lien  in  certain  cases,  in  connexion 
w'ith  the  bond  given  by  the  purchaser,  afford  strong  evidence,  that 
it  never  has  been  considered  as  following  any  such  assignment 
where  it  was  not  expressly  given  by  law.(^) 

But  it  is  urged,  that  a  decree  may  be  entered  up  by  the  default 
of  some,  and  wuth  the  assent  of  the  others  of  these  defend- 
ants ;  and  therefore,  the  plaintiffs  may  be  permitted  to  take  such 
a  decree  as  tl\ey  can  abide  by.  That  might  be  conceded  if  the 
case  itself,  as  shewn  by  the  bill,  w^as  such  an  one  as  fell  pro- 
perly under  the  cognizance  of  a  court  of  equity.  That  the  court 
has  jurisdiction,  and  that  the  plaintiff  has  a  legal  capacity  to 
recover,  upon  the  facts  stated  in  the  bill,  are  positions  assumed ; 
and  must  plainly  appear,  by  the  bill  itself,  in  all  cases,  to  entitle 
the  plaintiff  to  a  decree,  in  any  form  or  upon  any  terms  ;  and  to 
lay  a  sufficient  foundation  upon  which  the  court  may  rest  its  judg- 
ment. Consent  either  tacit  or  express  cannot  give  the  court  juris- 
diction where  it  has  none  ;  or  entitle  the  plaintiff  to  relief,  where, 
by  his  own  shewing,  it  appears  he  has  no  capacity  to  receive  it. 
Thus  far,  and  to  this  purpose  all  courts  of  justice,  as  well  of  law 
as  of  equity,  must  see,  that  their  judgments  and  decisions  have  a 
proper  and  legal  foundation  to  rest  upon.(M)  But,  divesting 
these  plaintiffs  of  their  unwarranted  pretensions  to  be  considered 
as  the  holders  of  the  equitable  lien  of  the  original  vendor,  their 
case  has  no  one  single  ingredient  or  character  of  equity  about  it. 
Their  remedy,  if  any,  is  at  law  as  assignees  of  the  bonds,  or  upon 
the  special  contract  subsisting  among  the  parties. 

Whereupon  it  is  decreed,  that  the  bill  be  dismissed  with 
costs,  &c. 


(s)  1785,  ch.  72,  s.  9.— (/)  1S20,  ch.  191,  s.  20,  21, 8c  22.— (u)  Bac.  Abr.  tit.  Pleas 
&.  Pleadings,  B.  5,  1 ;  Dr.  Bonham's  Case,  8  Co.  239  ;  Clarke  v.  Conn,  1  Mun.  160. 


MWRPHY  I'.  DALLAM.  529 


MURPHY  V.  DALLAM. 

A  devise  of  land  to  a  religious  sect  without  the  leave  of  the  legislature,  in  some  way 
previously  had  Jind  obtained,  is  void. 

This  was  a  creditors'  bill  filed  on  the  17th  of  November  1824, 
by  Jolm  Murphy  against  Henrietta  M.  Dallam^  William  J\L  Dallam 
and  others,  the  widow,  executors  and  devisees  of  Josias  W.  Dallam 
deceased ;  upon  which  a  decree  was  passed  on  the  8th  of  Feb- 
ruary 1826,  and  the  real  estate  of  the  deceased  was  sold  accord- 
ingly. After  which  the  auditor,  in  his  report  of  the  29th  of  October 
1828,  making  a  distribution  of  the  proceeds  of  the  sales  among 
the  creditors,  &c.,  says,  that  he  had  made  no  allowance  to  John 
Murphy^  who  was  a  purchaser  under  the  decree,  for  the  lot  claimed 
out  of  the  property  sold  to  him,  by  the  Methodist  society  in  virtue  of 
a  devise  in  the  will  of  the  deceased.  Independently  of  other 
objections,  the  devise  woidd  be  void  as  against  creditors. 

12;/i  January,  1829. — Bland,  Chancellor. — It  appears  by  the 
will  of  the  late  Josias  W.  Dallam,  that  he  devised  one-fourth  of 
an  acre  of  his  lands,  as  described,  to  Francis  Ashury  for  the  use 
of  the  Methodist  society  and  a  school.  It  is  not  shewn,  that  this 
society  ever  obtained  tlie  leave  of  the  legislature,  in  any  manner 
"whatever,  to  take  or  hold  this  property.  The  act  of  1802,  ch.  Ill, 
authorizes  any  religious  society  to  form  themselves  into  a  body 
politic,  and  the  8th  section  of  that  act,  and  the  act  of  1815,  ch. 
222,  authorizes  such  corporations  to  take  and  hold  a  certain 
amount  of  property.  But  it  has  not  been  shewn,  that  the  Metho- 
dist society  to  whom  this  devise  was  made  had  formed  themselves 
into  a  body  politic,  and  thus  became  qualified  to  hold  this  property 
by  virtue  of  this  general  leave  of  the  legislature. (a)  Therefore  I 
am  of  opinion,  that  this  devise  must  be  considered  as  absolutely 
null  and  void  by  virtue  of  the  34th  article  of  the  Declaration  of 
Rights  ;  and  upon  that  ground  the  claim  of  the  society  has  been 
properly  rejected. 


(a)  By  the  act  of  1791,  ch.  17,  it  was  enacted,  "  that  tiie  leave  of  the  legislature 
be  hereby  granted  to  the  said  religious  society  of  people  called  Quakers,  to  enjoy 
for  ever  the  use  of  the  said  land  in  East  Nottingham,  and  West  Nottingham  ;  pro- 
vided the  Chancellor,  on  examination,  shall  find  the  facts  above  stated  to  be  true," 
Sec.  This  appears  to  be  the  first  act  of  the  kind,  passed  in  pursuance  of  the  C4tli 
article  of  the  Declaration  of  Rights. 

67 


530  WATKINS  V.  DORSETT. 

Whereupon  it  is  ordered,  that  the  foregoing  statement  as  made 
and  reported  by  the  auditor  be  and  the  same  is  hereby  ratified  and 
confirmed ;  and  the  trustee  is  directed  to  apply  the  proceeds  accord- 
ingly, making  payment  to  the  said  claimants  or  to  their  respective 
solicitors,  with  a  due  proportion  of  interest  that  has  been  or  may 
be  received,  except  claims  No.  3,  17,  and  28,  which  are  suspended 
until  further  order. 


WATKINS  V.  DORSETT. 


An  executor  or  administrator  who  overpays  takes  the  place  of  the  creditor  whose 

debt  he  pays,  and  is  entitled  to  the  benefit  of  his  priority. 
The  principle  of  the  statute  of  limitation  may  be  applied  in  favour  of  a  plaintiff  as 

well  as  of  a  defendant. 
The  act  of  assembly  which  gives  the  process  of  a  judicial  attachment  applies  only  to 

courts  of  common  law. 
Choses  in  action,  and  several  other  kinds  of  property  are  beyond  the  reach  of  a  fieri 

facias. 

This  bill  was  filed  on  the  29th  of  January  1827,  by  Samuel  Wat- 
Icins,  Augustus  Watkins,  Charles  Watkins,  Ann  Watkins,  Jane 
Watki7is,  and  Eliza  Watkins,  infants,  by  Benjamin  Watkins  their 
next  friend,  against  Thomas  J.  Dorsett.  The  bill  states,  that 
Samuel  W.  Clagetf,  by  his  will,  made  on  the  21st  of  July  1815, 
bequeathed  certain  negro  slaves  to  the  infant  plaintiffs,  and 
appointed  Walter  Clagett  his  executor;  that  Samuel  died  soon 
after,  and  Walter,  having  taken  upon  himself  the  office  of  executor, 
returned  an  inventory  of  his  testator's  personal  estate  on  the  3d  of 
June  1817  ;  and  on  the  9th  of  April  1819  passed  a  final  account, 
in  which  he  is  represented  to  have  paid  in  satisfaction  of 
claims  against  his  testator  the  sum  of  $343  18  more  than  the 
amount  of  moneys  received  by  him  ;  that,  soon  after  the  settlement 
of  this  final  account,  he  transferred  and  delivered  to  the  legal 
guardian  of  these  infant  plaintiffs,  for  their  use,  the  several  specific 
legacies  which  had  been  bequeathed  to  them  by  his  testator  ;  and 
acknowledged  himself  to  be  perfectly  satisfied  and  paid  ;  that  after- 
wards, in  the  year  1819  or  1820,  Walter  Clagett  died ;  and  the 
defendant,  who  had  married  his  daughter,  and  was  thus  interested 
in  having  this  alleged  claim  against  the  testator  Samuel  established, 


WATKINS  V.  DORSETT.  531 

had  obtained  letters  of  administration  de  bonis  non  on  the  estate 
of  the  testator  Samuel  W.  Clagett,  and  had  advertised  for  sale,  and 
was  about  to  sell  those  very  slaves,  which  had  been  so  specifically 
bequeathed  and  delivered  to  these  plaintiffs.  The  plaintiffs,  by 
their  bill,  averred,  that  no  debt  was  then  due  on  the  final  account 
of  the  late  Walter  Clagett ;  that  it  had  been  satisfied  ;  that  no  suit 
had  ever  been  instituted  to  establish  it ;  and  that  it  was  barred  by 
the  statute  of  limitations.  Whereupon  the  plaintiffs  prayed,  that 
they  might  have  an  injunction  to  prevent  the  defendant  from 
making  sale  of  the  property  so  bequeathed  to  them  ;  and  that  they 
might  have  relief,  &c.     The  injunction  was  granted  as  prayed. 

The  defendant  put  in  his  answer,  in  which  he  admits  the  facts 
as  stated  in  the  bill ;  but  denies  that  the  claim  had  ever  been  paid ; 
and  insists,  that  it  could  not  be  barred  by  the  statute  of  limitations, 
as  there  had  not  been,  until  he  administered  on  the  estate  of 
Samuel  W.  Clagett,  any  one  against  whom  suit  for  its  recovery 
could  have  been  brought ;  and  that  it  was  with  him  alone  to  admit 
or  deny  the  existence  of  the  debt. 

Upon  this  answer  the  defendant  gave  notice  of  a  motion  to  dis- 
solve the  injunction:  on  the  hearing  of  which  on  the  17th  of 
March  1827,  it  was  continued  until  the  final  hearing  or  further 
order.  After  which  a  commission  was  issued,  under  which  testi- 
mony was  taken  and  returned,  and  the  case  set  down  for  final 
hearing. 

dOthJuly,  1828. — Bland,  Chancellor. — This  case  standing  ready 
for  hearing,  the  solicitors  of  the  parties  were  fully  heard  and  the 
proceedings  read  and  considered. 

The  object  of  this  bill  is  not  to  repel  a  claim  made  by  the  exe- 
cutor of  Walter  Clagett  against  these  plaintiffs  ;  but  to  restrain  the 
defendant,  as  administrator  de  bonis  non  of  Samuel  W.  Clao-ett, 
from  oflSciously  making  sale  of  that  which  had  been  the  property 
of  his  testator,  (but  which  had,  long  since,  been  legally  delivered 
over  to  these  plaintiffs  to  whom  it  had  been  bequeathed,)  for  the 
purpose  of  paying  the  claim,  which  Walter,  by  reason  of  his  over 
payment,  as  is  alleged,  had  against  the  estate  of  his  testator  Samuel. 

An  executor  who  overpays  is  allowed,  for  such  amount,  to  take 
the  place  of  the  creditor  whose  claim  he  has  thus  paid  beyond  the 
assets  of  his  testator.  He  is,  by  substitution,  regarded  as  one 
of  the  creditors  of  his  testator :  but  such  executor  must  establish 
the  claim  so  overpaid  against  the  heir  or  devisee  by  the  same  kind 
of  testimony  which  might   have   been   required  of  the  original 


532  WATKINS  V.  DORSETT. 

creditor  himself.(«.)  Had  Walter  Clagett^  who  thus  became  a  creditor 
of  Samuel  W.  Clagett,  made  this  claim ;  the  circumstance  of  his 
having  delivered  up  the  surplus,  and  the  great  length  of  time  which 
had  elapsed,  from  the  delivery  on  the  9th  of  April  1819  until  the 
institution  of  this  suit,  without  accounting  for  the  unqualified 
manner  of  the  delivery,  and  the  delay,  would  have  been  con- 
sidered as  a  complete  bar.  But,  in  this  case,  the  statute  of  limi- 
tations, as  such,  cannot  properly  be  applied ;  because,  that  statute 
is  a  defence  given  to  a  debtor  against  a  creditor  ;  and  here  it  is  not 
the  creditor  himself  who  makes  the  claim.  Yet  the  result  of  what 
this  defendant  claims  a  right  to  do  would  be  the  same  as  if  the 
executor  of  Walter  Clagett  wei'e  here,  as  plaintiff,  asking  pay- 
ment and  to  have  his  claim  sustained  against  these  parties  as 
defendants.  And,  consequently,  whatever  defence  they  would,  in 
such  case,  be  permitted  to  make,  they  ought,  as  plaintiffs,  to  be 
allowed  to  have  the  benefit  of  in  the  form  in  which  the  matter  is 
now  presented,  at  least  so  far  as  to  bind  this  defendant. 

I  am  therefore  of  opinion,  that  the  circumstances,  and  lapse 
of  time  raise  a  conclusive  presumption,  that  this  claim  of  Walter 
Clagett  either  never  existed  or  has  been  satisfied. 

Whereupon  it  is  decreed,  that  the  injunction  heretofore  granted 
in  this  case  be  and  the  same  is  hereby  made  perpetual ;  and  it  is 
further  decreed  that  the  defendant  pay  unto  the  plaintiffs  their  costs 
to  be  taxed  by  the  register. 


(a)  Robinson  v.  Tonge,  3  P.  Will.  400  ;  Gist  v.  Cockey,  7  H.  &  J.  139. 

Ex  PARTE  Street. — This  petition  was  filed  by  John  Street  on  the  3d  of  April 
1806,  under  the  act  of  1785,  ch.  72,  s.  4,  stating,  that  John  Cook  deceased  had  devised 
his  land  to  be  sold  for  the  payment  of  his  debts  without  authorizing  any  one  to  make 
the  sale ;  that  the  personal  estate  of  Cook  had  been  exhausted ;  and  that  the  peti- 
tioner, as  his  executor,  had  paid  debts  to  a  much  greater  amount  than  the  assets 
which  came  to  his  hands.  The  real  estate  was  accordingly  decreed  to  be  sold.  After 
which  the  case  having  been  brought  before  the  court  for  further  directions,  as  to  the 
distribution  of  the  proceeds  of  sale  among  the  creditors  : 

17///  June,  1809. — Kilty,  Chancellor. — The  rule  as  stated  by  the  auditor,  of  giving 
a  priority  to  claims  against  the  deceased  to  those  which  arise  to  the  executor  from 
an  overpayment  of  the  personal  estate,  was  established  by  the  late  Chancellor.  It 
has  been  departed  from  since,  in  cases  where  such  overpayment  was  made  on 
account  of  a.  judgment  or  other  lien ;  even  so  far  as  to  put  tlie  executor  in  tlie  place 
of  such  creditor  to  the  extent  of  his  lien.  In  the  present  case  the  overpayment  does 
not  appear  to  have  been  made  expressly  on  account  of  any  such  judgment ;  but  inas- 
much as  there  were  claims  on  judgments  paid  by  the  executor  exceeding  the  amount 
of  the  overpayment,  and  the  other  claims  now  exhibited  are  not  entitled  to  any 
preference,  it  is  thought  proper  to  let  the  executor's  claim  come  jn  equally  witlj 
others. 


WATKINS  V.  DORSETT.  53^ 

Upon  this  decree  the  plaintiffs  demanded  of  the  defendant  pay- 
ment of  their  costs,  which  he  failed  or  refused  to  pay.  After 
which  by  their  petition  they  stated,  that  they  knew  of  no  property 
which  belonged  to  the  defendant,  excepting  what  might  be  reached 
by  an  attachment  under  the  act  of  1715,  ch.  40,  s.  7,  and  therefore 
prayed  that  such  an  attachment  might  be  granted  to  them. 

\2th  January,  1829. — Bland,  Chancellor. — The  solicitor  of  the 
plaintiffs  having  been  heard  in  support  of  their  petition,  the  pro- 
ceedings were  read  and  considered. 

This  petition  exposes  one  of  the  still  subsisting  deficiencies  of 
our  code.  It  may  be  inferred  from  the  general  spirit  of  our  laws, 
that  all  the  property  of  a  debtor,  of  every  description,  Should  be 
liable  to  be  taken  by  his  creditors  in  satisfaction  of  their  claims. 
By  the  common  law,  the  personal  property  of  the  debtor,  with  the 
rents  and  profits  of  his  real  estate  only,  were  liable  ;  but  by  sta- 
tutes derived  to  us  from  England,  with  some  additional  legislative 
enactments  of  our  own,  the  real  estate  of  a  debtor  has  been  sub- 
jected to  be  taken  in  execution  by  fieri  fiacias,  or  attachment,  and 
sold  for  the  satisfaction  of  his  debts  in  like  manner  as  his  personal 
property.(6)  There  are,  however,  still  several  kinds  of  property, 
which  a  debtor  may  hold,  laying  beyond  the  reach  of  his  creditor's 
execution. 

Public  stock,  the  stock  of  banks,  of  turnpike  road  companies, 
and  the  like,  cannot  be  taken  in  execution  under  a  fieri  facias,  nor 
can  choses  in  action  be  made  liable  to  creditors  at  common  law,(c) 
otherwise  than  by  an  original  or  judicial  attachment  ;(rf)  but  the 
acts  of  Assembly,  which  direct  the  manner  of  suing  out  attach- 
ments, have  in  express  terms  treated  them  as  process  ancillary  ta 
the  judicial  powers  of  the  courts  of  common  law  only;  have 
authorized  the  use  of  them  by  any  individual  inhabitant  of  the 
United  States  who  may  be  entitled  to  sue  here  ;  and  have  limited 
the  extent  of  them  to  the  taking  of  the  lands,  tenements,  goods, 
chattels,  and  credits  of  the  debtor  in  cases  at  common  law 
only.(e)  In  England  it  is  laid  down,  that  choses  in  action,  stock, 
debts,  &c.  are  not  liable  to  creditors  ;  and  that  they  cannot  be 
taken  on  a  fieri  facias,  or  under  a  sequestration  from  chancery, 


(6)  5  Geo.  2,  c.  7;  1810,  ch.  160  ;  Ford  v.  Philpot,  .'»  H.  &  J.  ,315;  Barney  v. 
Patterson,  6  H.  &  J.  182.— (c)  Harding  v.  Stevenson,  6  H.  &  J.  267.— (rf)  Ford  v 
Philpot,  5  H.  &  J.  317.— (r)   1715,  ch.  40;  1795,  ch.  56  ;  1825,  ch.  114. 


534  WATKINS  V.  DORSETT. 

or  be  at  all  touched  in  equity  for  the  benefit  of  creditors. (y) 
The  reason,  it  is  said,  why  choses  in  action,  according  to  the 
general  rules  of  the  Court  of  Chancery,  are  not  liable  to  execu- 
tion is,  because  the  court  takes  notice,  that  the  creditor  has  a 
method,  by  the  ordinary  rules  of  law,  either  to  compel  satisfac- 
tion, by  seizing  the  person  ;  or,  where  the  person  cannot  be  taken, 
by  proceeding  to  an  outlawry  and  taking  the  lands  as  well  as  effects 
into  the  hands  of  the  king,  which,  as  of  course,  are  then  applied 
in  satisfaction  of  creditors. (^)  Now,  as  it  is  evident,  that  our 
process  of  attachment  is,  in  many  respects,  equivalent  to  this  mode 
of  obtaining  satisfaction  by  means  of  an  outlawry,  which  was 
never  in  use  here,  and  as  this  court  must  take  notice  of  the  remedy 
by  attachment,  it  may  well  be  held,  that  a  creditor  cannot  be  per- 
mitted to  come  here  for  relief  in  any  case  where  he  could  obtain 
it  by  attachment  at  law.  But,  where  a  party  cannot  obtain  relief 
at  all,  either  by  an  ordinary  execution,  or  by  the  extraordinary  pro- 
cess of  outlawry  or  attachment  by  reason  of  the  peculiar  situation 
of  the  property,  or  the  equitable  nature  of  the  title  to  it,  he  may 
obtain  relief  by  bill  in  equity.(/i) 

But  the  mode  of  obtaining  relief  by  bill  in  chancery  must  neces- 
sarily be  comparatively  tardy  and  expensive  ;  and  where  the  fund, 
thus  pursued,  consists  of  mere  choses  ni  action,  the  delay  may  aiford 
to  a  fraudulently  disposed  debtor  ample  time  to  place  it  entirely 
beyond  the  reach  of  any  process  that  can  be  issued  by  a  court  of 
equity ;  so  that,  after  the  creditor  had  thus  obtained  a  decree  in  his 
favour,  he  would  be  no  nearer  to  relief  than  when  he  began. 

I  have  met  with  no  evidence  of  any  well  settled  practice  shew- 
ing, that  this  court  had  conceived  itself  authorized  to  allow  a  party 
to  sue  out  a  judicial  attachment,  instead  of  any  other  execution,  to 
obtain  satisfaction  of  a  decree. (i)  Yet  I  can  see  no  just  reason  why 
the  process  of  attachment  should  not  be  so  enlarged  as  to  compre- 

(/)  Dundas  v.  Dutens,  1  Ves.  jun.  196  ;  Guy  v.  Pearkes,  18  Ves.  196  ;  Franckyin 
V.  Calhoun,  3  Swan.  276  ;  Pelham  v.  Newcastle,  3  Swan.  290 ;  McCarthy  v.  Goold, 
1  Ball  &  Beat.  389  ;  Grogan  v.  Cooke,  2  Ball  &.  Beat.  233.— (sr)  Eilgell  v.  Haywood, 
3  Atk.  356.— (A)  Edgell  v.  Haywood,  3  Atk.  352 ;  Willis,  Plea.  115  ;  Hadden  v.  Spa- 
der, 20  John.  554  ;  Ford  v.  Philpot,  5  H.  &,  J.  312. 

(f)  RicKOTT  V.  HiGGiNSON. — 1720.— Subpcena  for  costs.  Mr.  Warman,  sheriff  of 
Ann  Anindel  county,  conies  into  court  and  certifies,  that  Mr.  Gilbert  Higginson,  the 
defendant,  is  not  to  be  found  in  his  bailiwick ;  but,  that  he  has  left  the  subpana  for 
costs  in  this  cause  with  Mr.  Pati'ick  Sympson,  attorney  in  fact  for  tlie  defendant. 
Therefore  ordered,  that  attachment  issue  in  the  same  manner  as  is  directed  out  of  the 
courts  of  common  law.— CAa/i.  Proc.'Lib.  P.  L.  fol.  568. 


ETCHISON  t'.  DORSE Y.  535 

Lend  all  cases  ;{j)  and  be  allowed  as  a  means  of  obtaining  satisfac- 
tion of  a  decree  in  equity  as  well  as  of  a  judgment  at  common  law.(/c) 
But  this  subject  appears  to  have  been,  some  years  since,  maturely 
considered  by  the  legislature,  who  at  that  time  armed  the  Court  of 
Chancery  with  all  such  new  and  additional  process  as  was  then 
deemed  necessary  to  an  effectual  exercise  of  its  powers  ;(Z)  and  the 
common  law  process  of  judicial  attachment  was  not  then  given,  (yn) 
I  am  therefore  of  opinion,  that  no  such  attachment  can  be  awarded 
as  prayed. 

Whereupon  it  is  ordered,  that  the  petition  of  the  plaintiffs  be 
and  the  same  is  hereby  dismissed  with  costs. 


ETCHISON  V.  DORSEY. 


If,  on  a  bill  for  a  specific  performance,  a  decree  be  passed  directing  the  defendant  to 
convey  on  the  payment  of  the  purchase  money ;  there  cannot  aftenvards  be  a 
decree  ordering  the  plaintiff  to  pay  the  purchase  money  without  a  cross  bill ; 
although  such  a  reciprocal  decree  might  have  been  passed  in  the  first  instance,  had 
it  been  called  for,  without  a  cross  bUl. 

This  bill  was  filed  on  the  12th  of  September  1827,  by  Ephraim 
Etchison,  Odle  Wheeler  and  Caroline  his  wife,  Mortimer  Dorsey, 
Richard  Dorsey,  JYelson  Morris  and  Eliza  his  wife,  John  Dorsey, 
Caleb  Dorsey,  and  John  Hood  and  Louisa  his  wife,  against  Mary 

(j)  Yerby  v.  Lackland,  6  H.  &  J.  451 ;  Harden  v.  Moores,  7  H.  &  J.  4. 

(fc)  The  process  of  attachment  to  enable  a  creditor  to  obtain  satisfaction  of  his 
debt,  appears,  by  the  acts  of  1647,  ch.  3,  and  1682,  ch.  2,  to  have  been  engrafted  into 
our  code  among  the  earliest  formations  of  its  judicial  proceedings  ;  and  has  been  in 
constant  use,  with  few  alterations,  ever  since.  About  the  year  1705,  in  a  report 
made  by  the  then  ex-chancellor.  Lord  Somers,  to  the  House  of  Lords,  it  was  among 
other  things  proposed,  that  "  the  debts  that  any  defendant  hath  owing  unto  him  may 
be  attached  in  execution,  in  satisfaction  for  debt  and  damages  recovered  against 
him  ;  and  a  day  shall  be  given  to  the  debtor  to  appear,  the  court  shall  give  judgment 
for  the  plaintiff  to  recover  so  much  as  shall  be  attached,  8cc.,  as  in  London  upon  a 
foreign  attachment." — Parke's  Hist.  Co.  Chan.  274. 

Since  this  decision  was  pronounced,  it  has  been  declared  by  the  legislature,  that 
an  attachment  may  be  laid  upon  debts  due  the  defendant  upon  Judgments  or  decrees, 

1831,  ch.  321 ;  and  also  that  a  fieri  facias,  or  attachment,  may  be  laid  upon  any  inter- 
est which  a  defendant  may  have  in  the  capital  or  joint  stock  of  any  coqioration,  or 
in  the  debt  of  any  corporation  transferable  upon  the  books  of  such  corporation ; 

1832,  ch.  307. 

(0  17S5,  ch.  72,  s.  25.— (m)  Shivers  v.  Wilson,  5  H.  &  J.  130. 


536  ETCHISON  V.  DORSET. 

Dorsey,  Jlchsah  Dorsey,  Hanson  Dorsey,  Henry  Dorsey,  and  Septi-^ 
mus  Dorsey,  all  of  whom  were  infants.  The  bill  states,  that  Rich- 
ard Dorsey  sold  to  the  plaintiff  Etchison  a  tract  of  land  containing 
ninety  acres,  delivered  to  him  the  possession,  and  received  a  part 
of  the  purchase  money,  leaving  a  balance  of  three  hundred  dollars 
still  due ;  after  which  Richard  Dorsey  the  A^endor  died  intestate, 
leaving  the  plaintiffs  Caroline,  Mortimer,  Richard,  Eliza,  John, 
Caleb,  and  Louisa,  with  the  infant  defendant's,  his  children  and  heirs 
at  law ;  that  the  plaintiff  Mortimer  had  been  appointed  adminis- 
trator of  the  personal  estate  of  his  father  the  late  Richard.  Where- 
upon the  plaintiffs  prayed,  that  the  defendants  might  be  required 
to  join  in  a  conveyance  of  the  land  sold  on  the  purchase  money 
being  paid,  &c.  The  infant  defendants  answered  by  guardian  and 
submitted  to  such  decree  as  might  be  deemed  equitable,  &c. 

Ibth  October,  1827. — Bland,  Chancellor. — Decreed,  that  on 
payment  by  the  complainant  Ephraim  Etchison  of  the  sum  of  three 
hundred  dollars  with  the  interest  due  thereon  to  Mortimer  Dorsey 
administrator  of  Richard  Dorsey  deceased,  or  on  bringing  the  same 
into  this  court  to  be  paid  to  him,  being  the  balance  of  the  purchase 
money  due  as  stated  in  the  bill ;  that  the  other  plaintiffs  Odle 
Wheeler,  &c.,  for  themselves,  and  that^?m  Dorsey,  as  guardian  on 
behalf  of  the  infant  defendants,  shall  by  a  good  deed  to  be  exe- 
cuted according  to  law,  convey  to  the  plaintiff  Ephraim  Etchison, 
&c.  Provided  nevertheless,  that  liberty  be  and  the  same  is  hereby 
reserved  to  the  infant  defendants  to  shew  cause  according  to  the 
act  of  1773,  ch.  7. 


After  which  the  plaintiff  Mortimer  Dorsey  by  his  petition  alleged, 
that  the  plaintiff  Etchison  had  refused  to  pay  the  balance  of  the 
purchase  money  as  required  by  this  decree ;  although  the  other 
parties  then  were  and  had  always  been  ready  to  execute  the  con- 
veyance as  directed.  Whereupon  he  prayed,  that  Etchison  might 
be  ordered  to  pay,  &c. 

19^/i  February,  1829. — Bland,  Chancellor. — The  aforegoing 
petition  of  Mortimer  Dorsey  having  been  submitted,  the  same^ 
with  the  other  proceedings,  were  read  and  considered. 

On  a  bill  for  specific  performance,  where  it  appeared  by  the  case 
admitted  or  established,  that  each  party  was  bound  to  pay  money 
or  to  perform  some  act  for  the  benefit  of  the  other,  the  court,  by 
the  ancient  practice,  could  only  decree  in  favour  of  the  plaintiff^ 
leaving  the  defendant  to  obtain  that  to  which  he  was  entitled  by  a 


ETCHISON  V.  DORSEY,  537 

cross  bill.  But  according  to  the  present  course  of  proceeding,  as 
well  in  England  as  in  Maryland,  the  court  may  if  called  on  dis- 
pense with  a  cross  bill,  and  pass  a  decree  upon  the  whole  case, 
as  well  in  favour  of  the  defendant  as  of  the  plaintiff;  as  that 
the  one  convey  the  property,  and  the  other  pay  the  purchase 
money,  (a)  But  a  decree  to  redeem  may  result  in  a  foreclosure 
without  a  cross  bill  to  foreclose  ;  as  if  a  bill  filed  by  a  mortgagor 
for  redemption  is  by  decree  dismissed,  because  of  the  money  not 
being  paid  at  the  time  directed  by  the  decree  to  redeem,  that  ope- 
rates as  a  foreclosure,  and  is  equivalent  to  a  decree  for  foreclo- 
sure ;(6)  but  the  dismission  of  such  a  bill  merely  for  want  of 
prosecution  has  not  that  effect. (c)  ■ 

It  appears,  that  this  case  was  submitted,  and  such  a  decree 
prepared  and  presented  to  the  Chancellor  as  the  parties  thought 
proper  to  have  passed  without  opposition  or  contest,  which  was 
accordingly  signed.  A  decree  might  have  been  passed  against 
the  plaintiff  commanding  him  to  pay,  as  well  as  against  the 
defendants  ordering  them  to  perform  their  part  of  the  contract  by 
conveying  the  property,  as  had  been  stipulated,  on  the  payment  of 
the  purchase  money.  But  this  decree  is,  according  to  the  ancient 
course,  only  in  favour  of  the  plaintiff  and  against  the  defendant ; 
and  therefore  this  petitioner  can  only  obtain  the  relief  he  asks  by 
a  bill  in  the  nature  of  a  cross  bill,  it  being  now  entirely  too  late  to 
alter  the  decree  in  any  manner  whatever. 

Whereupon  it  is  ordered,  that  the  said  petition  be  and  the  same 
is  hereby  dismissed  with  costs. 


After  which  the  other  parties  filed  a  bill,  in  the  nature  of  a  cross 
bill,  against  Ephraim  Etchison,  for  the  amount  of  the  purchase 
money  so  ascertained  to  be  due,  and  it  was  on  the  28th  of  March 
1829  decreed,  that  Etchison  pay  the  balance  then  due,  and  upon 
the  payment  thereof,  that  the  plaintiffs  execute  a  conveyance  to 
him  for  the  land,  &c. 

(a)  Dorsey  v.  Campbell,  ante,  356. — (b)  The  Bishop  of  Winchester  v.  Paine, 
11  Ves.  199.— (c)  Hansard  v.  Hardy,  IS  Ves.  460. 

68 


538  MULLIKIN  V.  MULLIKIIf. 


MULLIKIN  V.  MULLIKIN. 

A  trustee,  who  had  been  appointed  to  make  sale  under  a  decree,  ordered  to  bring  the 
purchase  money  with  the  bonds  and  notes  received  or  taken  by  him,  into  court, 
and  displaced,  because  of  his  misconduct. 

A  distributee  can  be  allowed  nothing  until  all  sums  for  which  he  is  liable  as  princi- 
pal or  suret}'  have  been  paid ;  and  his  assignee  takes  subject  to  all  equities  to 
which  he  is  liable. 

On  a  purchaser  failing  to  pay  the  purchase  money,  the  land  may  be  resold  at  his  risk 
under  the  court's  equitable  lien. 

This  bill  was  filed  on  the  4th  of  December  1812,  by  Benjamin 
H.  Mullikin,  Richard  D.  Mullikin,  Basil  D.  Miillikin,  Jacob  F. 
Watersj  Basil  Duckett  and  Sophia  his  wife,  Margaret  Mullikin, 
Ann  Mullikin,  and  Kitty  Mullikin,  against  Regnal  Mullildn,  Baruch 
Mullikin,  John  Waters,  Jinn  Maria  Waters,  and  Rachel  Waters,  all 
of  whom  were  minors.  The  bill  states,  that  Belt  Mullikin  had 
died  intestate  seized  of  a  large  real  estate  which  had  descended  to 
his  children  the  plaintiffs  Benjamin,  Richard,  Basil  D.  Mullikin, 
Sophia,  Margaret,  Jinn,  and  Kitty,  who  were  of  full  age,  and  to  his 
children  the  infant  defendants  Regnal  and  Baruch;  and  to  his 
grand-children,  the  infant  defendants,  John,  Jinn  Maria,  and 
Rachel,  who  were  the  children  of  the  intestate's  late  daughter 
Martha  H.  Waters  who  had  been  the  wife  of  the  plaintiiF  Jacob  F. 
Waters  ;  that  it  would  be  for  the  benefit  of  all  the  representatives 
of  the  intestate  to  have  the  land  sold,  in  order  to  make  division 
of  the  proceeds  thereof;  but  that  a  sale  could  not  be  effected  with- 
out the  interposition  of  this  court.  Whereupon  the  plaintiffs  prayed, 
that  a  sale  might  be  made ;  and  that  they  might  have  such  other 
relief  as  the  nature  of  their  case  might  require. 

The  defendants  Regnal  and  Baruch  having  attained  their  full 
age,  since  the  filing  of  the  bill,  put  in  their  answer  on  the  6th  of 
January  1817,  and  consented  to  a  sale  as  prayed.  And  the  other 
defendants,  who  were  still  under  age,  answered  by  guardian  and 
admitted,  that  a  sale  should  be  made  as  prayed. 

Upon  which  on  the  8th  of  January  1817  a  decree  was  passed  in 
the  usual  form,  appointing  Jonathan  Meredith  trustee  to  make  the 
sale ;  who,  with  his  own  consent,  was  on  the  10th  of  March  fol- 
lowing removed,  and  Basil  D.  Mullikin  appointed  in  his  stead. 
After  which  this  trustee,  having  given  bond  with  Baruch  Mul- 
likin and  Regnal  Mullikin  as  his  sureties,  on  the  4th  of  April 
1821  filed  his  report,  in  which  he  states,  that  he  had  on  the  5th  of 


MULLIKIN  V.  MULLIKIN.  539 

December  1817  sold  a  part  of  the  estate  to  Benjamin  H.  Mullikin 
for  the  sum  of  $5163  75 ;  that  on  the  19lh  of  October  1819  he 
had  sold  the  residue  of  the  estate  to  Edward  E.  Anderson,  for  the 
sum  of  $3000  ;  that  he  had  received  a  payment  of  $1798  71  from 
the  purchaser  Benjamin  H.  Mullikin,  and  held  his  notes  for  the 
balance ;  and  that  he  had  received  in  payment  from  the  purchaser 
Anderson  the  sum  of  $1060 ;  and  held  his  notes  for  the  balance. 
These  reported  sales  were  finally  ratified  on  the  14th  of  February 
1825,  and  on  the  same  day  the  auditor  reported  a  distribution  of 
the  proceeds  among  those  heirs  of  the  late  Belt  Mullikin  ;  which 
was  confirmed  by  an  order  passed  on  the  next  day,  and  the  trustee 
directed  to  apply  the  proceeds  accordingly. 

On  the  12th  of  September  1827  the  heiress  Kitty,  who  had  mar- 
ried Joseph  Hoioard,  with  her  husband  filed  a  petition,  alleging, 
that  the  trustee  Basil  D.  Mullikin  had  received  the  whole  or  the 
greater  part  of  the  purchase  money,  and  had  not  paid  the  petitioner 
Kitty  or  her  husband  the  share  awarded  to  her ;  whereupon  they 
prayed,  that  the  trustee  might  be  ordered  to  report  his  proceedings 
and  to  bring  into  court  the  proceeds  of  the  sale  made  by  him. 
Upon  which  he  was  ordered  to  report  or  shew  cause ;  and  accord- 
ingly on  the  26th  of  February  1828  he  filed  his  report  or  answer, 
loosely  stating  the  sums  he  had  received  and  paid  away,  and  that 
the  securities  taken  from  the  purchasers  had  been  deposited  with 
his  surety  Baruch  Mullikin,  and  further  that  he  had  applied  for  the 
benefit  of  the  insolvent  laws.  To  the  sufficiency  of  this  answer 
the  petitioners  filed  their  exceptions  on  the  29th  of  February  1828, 
in  which  they  also  pray,  that  Baruch  Mullikin  may  be  required  to 
bring  those  securities  into  court;  that  the  trustee  be  directed  to 
bring  in  the  money  received  by  him  ;  and  that  he  be  displaced. 

On  the  same  29th  of  February  the  heiress  Rachel  with  Thomas 
I.  Hall  her  husband,  and  Harriet  Waters  as  assignee  of  the  heir 
John  Waters,  filed  their  petition,  in  which  they  state,  that  the  share 
awarded  to  Rachel  and  John  had  not  been  paid  by  the  trustee  ;  and 
pray,  that  they  may  be  admitted  as  parties  along  with  Howard  and 
wife ;  which  was  ordered  accordingly. 

Zd  March,  1828. — Bland,  Chancellor. — On  consideration  of 
the  petition  of  Howard  and  wife  and  the  answer  of  the  trustee 
Basil  D.  Mullikin  thereto ;  and  of  the  objections  to  that  answer, 
which  objections  being  considered  valid,  it  is  ordered,  that  the 
said  trustee  Basil  D.  Mullikin  be  and  he  is  hereby  required  to 
make  a  full  and  perfect  answer  to  the  said  petition  accordingly  on 


540  MULLIKIN  V.  MULLIiaN. 

or  before  the  first  day  of  April  next.  And  it  is  further  ordered, 
that  the  said  Basil  D.  MulliJcin  and  the  said  Baruch  Midlikin,  his 
surety,  bring  into  this  court  all  the  bonds  or  notes  which  were 
taken  by  the  said  Basil  from  the  purchasers  of  the  property  in  the 
proceedings  mentioned  to  secure  the  payment  of  the  purchase 
money ;  or  in  case  the  same  or  any  part  thereof  has  been  paid  to 
them  or  either  of  them,  that  they  bring  into  this  court  the  whole 
amount  of  the  money  so  received  by  them  or  either  of  them,  on  or 
before  the  first  day  of  April  next,  or  shew  good  cause  to  the  con- 
trary :  provided  that  a  copy  of  this  order,  together  with  a  copy  of 
the  said  objections,  be  served  on  the  said  Basil  D.  Midlikin  and 
Baruch  Mullikin  on  or  before  the  fifteenth  instant.  And  it  is 
further  ordered,  that  the  said  Basil  D.  Mullikin  be  and  he  is  hereby 
displaced,  and  Thomas  S.  Alexander  is  hereby  appointed  trustee  in 
his  stead  wuth  the  same  authority  and  subject  to  the  same  respon- 
sibility :  provided  that  before  he  acts  as  such  he  shall  give  bond  in 
the  penalty  of  twenty  thousand  dollars  as  required  by  the  said  decree. 


The  trustee  Jilexander  gave  bond  as  required  ;  on  the  26th 
of  March  1828  Basil  D.  Mullikin  filed  a  full  answer ;  on  the  24th 
of  September  following  the  case,  by  order,  was  referred  to  the 
auditor ;  and  on  the  20th  of  December  Baruch  MulWdn  filed  his 
answer  in  obedience  to  this  last  order. 

On  the  5th  of  May  1828  the  trustee  Jilexander  filed  a  represen- 
tation, stating,  that  the  land  reported  to  have  been  sold  to  Benja- 
min H.  Mullikin  was  in  fact  purchased  by  him  for  the  use  of 
JYicholas  Woodward,  who  had  intermarried  with  the  heiress  Marga- 
ret, who  had  died  after  the  confirmation  of  the  auditor's  report,  by 
reason  whereof  the  right  to  demand  and  receive  her  share  had 
survived  to  her  husband  JYicholas ;  that  a  considerable  amount  of 
the  purchase  money  was  yet  unpaid,  which  JVicholas  admitted.  No 
cause  was  shewn  by  Benjamin  H.  Mullikin. 

And  on  the  same  5th  of  May  this  trustee  filed  another  represen- 
tation, stating,  that  much  of  the  proceeds  of  sale  had  been  misap- 
plied by  the  former  trustee  Basil  D.  Mullikin  and  was  likely  to  be 
lost  by  his  misconduct,  and  also  by  the  misconduct  of  some  of 
the  other  heirs,  who  were  his  sureties,  or  who  were  purchasers  or 
the  sureties  of  purchasers. 

1th  May  1828. — Bland,  Chancellor. — The  representations  of 
the  trustee,  Thomas  S.  Jilexander,  having  been  submitted,  the  pro- 
ceedings were  read  and  considered. 


MULLIKIN  V.  MULLIKIN.  541 

It  appears,  that  much  of  the  purchase  money  for  which  the  real 
estate  was  sold  is  likely  to  be  lost,  by  reason  of  the  misconduct  or 
negligence  of  some  of  those  to  whom  proportions  of  it  have  been 
directed  to  be  paid  by  the  order  of  the  15th  of  February  1825. 
That  order  was  certainly  founded  upon  the  presumption  that  no  part 
of  the  purchase  money  had  been  or  would  be  lost  by  the  miscon- 
duct of  any  of  the  persons  among  whom  it  was  to  be  distributed. 
It  is  very  clear,  that  no  one  of  these  distributees  can  be  allowed 
to  receive  any  portion  of  the  share  awarded  to  him  until  all  sums, 
that  ought  to  have  been  paid  by  him,  and  for  which  he  is  in  any 
way  liable,  have  been  satisfied.  And  I  hold  it  to  be  no  less  clear, 
that  every  assignee  of  a  distributee  must  take  subject  to  all  equi- 
ties to  which  such  distributee  was  in  any  manner  liable. 

Whereupon  it  is  ordered,  that  the  order  of  the  15th  of  February 
1825,  in  so  far  as  it  directs  the  payment  of  any  money  unto  Basil 
D.  Mullikin,  the  former  trustee,  and  Baruc/i  Mullikin  and  Regnal 
Mullikin  his  sureties,  and  Benjamin  H.  Mullikin  and  Margaret 
Mullikin^  who  died  after  the  passage  of  that  order  and  after  havin"- 
been  married  to  JVicholas  Woodward,  be  and  the  same  is  hereby 
rescinded  and  annulled. 


On  the  5th  of  May  1828,  the  trustee  Alexander  also  represented, 
that  the  purchaser  Anderson  and  his  surety  Benjamin  H.  Mullikin 
had  not  paid  the  purchase  money ;  upon  which  by  an  order  of  the 
7th  of  the  same  month,  they  were  ordered  to  bring  in  the  balance 
due,  or  shew^  calise.  And  they  having  failed  to  bring  in  the  money, 
the  matter  was  submitted  for  the  judgment  of  the  court  upon  the 
cause  shewn. 

25th  June,  1828. — Bland,  Chancellor. — The  petition  and  rep- 
resentation of  the  trustee,  together  w^ith  the  answer  thereto  of 
Edioard  E.  Anderson  and  Benjamin  H.  Mullikin,  having  been  sub- 
mitted, the  same,  with  the  proceedings  to  which  they  relate,  were 
read  and  considered. 

It  appears,  that  the  whole  amount  of  the  purchase  money  for  the 
tract  of  land  heretofore  sold  as  mentioned  in  the  said  representa- 
tion has  not  been  paid,  and  that  for  the  amount  still  due  the 
equitable  lien  held  by  this  court  yet  subsists  in  full  force  and 
unimpaired. 

Whereupon  it  is  decreed,  that  the  trustee  Thomas  S.  Alexander 
proceed  to  make  sale  of  the  land,  heretofore  sold  to  the  said 
Edward  E.  Anderson,  for  the  payment  of  the  balance  of  the  pur- 


542  MULLIKIN  V.  MULLIKIN. 

chase  money  due  thereon  ;  that  the  sale  be  at  his  risk  ;  and  the 
terms  thereof  be  for  ready  money  payable  on  the  day  of  its  ratifi- 
cation. In  all  other,  particulars  the  trustee  is  directed  to  conform 
to  the  decree,  according  to  which  and  the  subsequent  orders  he  has 
given  bond  for  the  faithful  discharge  of  the  trust  reposed  in  him. 


From  this  decree  Anderson  appealed,  and  filed  a  bond  which 
was  approved  on  the  29th  of  January  1829,  but  the  appeal  was 
some  time  after  abandoned. 

On  the  4th  of  November  1828,  Daniel  Kent  filed  his  petition,  in 
which  he  states,  that  by  a  deed  bearing  date  on  the  5th  of  May 
1825,  the  heir  Basil  D.  Mullikin  conveyed  his  interest  in  the 
estate  of  the  intestate  to  the  heir  Baruch  Mullikin  ;  and  that  by  a 
deed  bearing  date  on  the  18th  of  July  1827,  the  heir  Regnal  Mul- 
likin conveyed  his  interest  in  the  intestate's  estate  to  the  heir 
Baruch  Mullikin,  who  having  thus,  by  assignment  and  descent 
become  entitled  to  three-tenths  of  the  intestate's  estate,  by  a  deed 
bearing  date  on  the  first  day  of  May  1828,  assigned  the  same  to 
the  petitioner  ;  and  that  he,  this  petitioner,  is  a  bona  fide  purchaser 
for  a  valuable  consideration  without  notice.  Whereupon  he  prayed, 
that  the  shares  of  the  intestate's  estate  so  assigned  to  him  might  be 
directed  to  be  paid  to  him  accordingly.  These  three  several  deeds 
of  assignment  were  each  of  them  acknowledged  and  recorded 
as  required  by  law  ;  and  were  besides  proved  to  have  been  exe- 
cuted by  the  grantors.  It  appears,  that  Basil  D.  Mullikin 
applied  for  the  benefit  of  the  insolvent  laws  on  the  30th  of 
May  1825  ;  that  Regnal  Mullikin  applied  for  the  benefit  of  the 
insolvent  laws  on  the  18th  of  May  1827  ;  and  that  Baruch  Mul- 
likin made  a  similar  application  on  the  8th  of  May  1828  ;  but 
it  is  admitted  that  Benjamin  H.  Mullikin  never  made  any  such 
application.  Whereupon  it  was  ordered,  that  the  matter  stand  for 
hearing  provided  a  copy  be  served,  &c.  After  which  it  was 
brought  before  the  court  and  the  solicitors  of  the  parties  were  fully 
heard. 

4^A  March,  1829. — Bland,  Chancellor. — There  is  no  principle 
of  equity  or  justice  upon  which  Basil  D.  Mullikin,  Baruch  Mulli- 
kin, Regnal  Mullikin,  Benjamin  H.  Mullikin,  or  JYicholas  Wood- 
ward, or  any  one  claiming  under  them  or  any  or  either  of  them,  by 
virtue  of  any  assignment  or  transfer  made  since  the  institution  of 
this  suit,  can  be  allowed  to  receive  any  thing  from  this  court 
until  they  have  paid  or  brought  in  all  sums  of  money  for  which 


MULLIKIN  V.  IVIULLIKIN.  543 

they  are  liable  as  principals  or  sureties,  or  until  all  the  other 
heirs  of  the  intestate  have  been  fully  satisfied  and  paid  from 
the  proceeds  of  the  sale  of  the  intestate's  estate  now  in  the 
hands  of  the  court,  or  under  its  control  for  the  purpose  of 
distribution. 

Whereupon  it  is  ordered,  that  this  case  be  and  the  same  is  hereby 
referred  to  the  auditor  with  directions  to  state  an  account  accord- 
ingly, distributing  the  proceeds  of  the  sale  of  the  intestate's  estate 
now  remaining  under  the  control  of  the  court ;  first  among  the  heirs 
of  the  intestate  who  have  not  been  paid,  or  in  so  far  as  they  have 
not  been  satisfied ;  and  the  balance  if  any  to  the  petitioner  Daniel 
Kent,  as  the  assignee  of  Basil  D.  Mullikbiy  Baruch  Mullikin,  and 
Regnal  Mullikin;  and  to  Benjamin  H.  Mullikin  and  J\'icholas 
Woodward :  provided  it  shall  appear,  that  they  have  each  of  them 
paid  or  brought  into  court  all  sums  of  money,  being  portions  of  the 
said  intestate's  estate  which  they  or  either  of  them  as  trustee,  pur- 
chaser or  surety  ought  to  have  paid  or  brought  into  court,  or  for 
which  they  or  either  of  them  is  liable  because  of  its  not  having  been 
so  brought  in  or  paid.  But  as  there  has  been  an  appeal  from  the 
decree  of  the  25th  of  June  1828,  directing  the  land  purchased  by 
Anderson  to  be  sold  for  the  payment  of  the  purchase  money  due 
from  him,  the  disposition  of  that  amount  must  be  suspended  until 
that  appeal  has  been  finally  determined ;  and  consequently  so  much 
of  this  case  as  is  affected  by  that  appeal  cannot  be  embraced  in  the 
statements  contemplated  by  this  order. 


After  w'hich  the  auditor  reported  a  distribution  of  the  proceeds 
as  directed,  which  was  confirmed  by  an  order  of  the  4th  of  May 
1829 ;  from  which  Kent  appealed ;  and,  at  June  term  1831,  the 
order  was  aflSrmed  by  the  Court  of  Appeals. 


544  ALLEN  V.  BURKE. 


ALLEN  V.  BURKE. 

The  act  of  1820,  ch.  161,  applies  only  to  cases  in  which  it  remains  to  pass  a  final 

decree. 
"Where  the  suit  abates  after  a  final  decree  it  may  be  revived  by  a  subpcBna  scire 
facias.     The  form  of  the  writ,  and  the  mode  of  proceeding. 

This  bill  was  filed  on  the  2d  of  March  1824,  by  Richard  Allen 
against  Micajah  Burke  and  Jinn  his  wife,  and  Williani  Comegys,  to 
foreclose  certain  mortgages  which  had  been  given  by  the  defendant 
Ann,  while  sole,  to  the  plaintiff  on  a  certain  parcel  of  ground  and 
its  rents  and  profits,  of  which  she  held  the  remainder  in  fee  simple, 
after  the  expiration  of  a  lease  for  years  held  by  the  defendant 
Comegys.  The  defendants  answered :  after  which  the  defendant 
Ann  died  ;  and  the  suit  was  revived  against  Elizabeth  Burke,  her 
daughter  and  heir.  Commissions  were  then  issued  and  testimony 
taken  and  returned  ;  upon  which  the  case  was  heard  ;  and  on  the 
29th  of  April  1828  it  was  decreed,  that  the  mortgaged  property  be 
sold ;  and  that  the  defendant  Comegys  pay  to  the  plaintiff  the  sum 
of  $846  97,  &c. 

After  which  Sarah  Allen,  by  her  petition,  stOfted,  that  the  plain- 
tiff Richard  Allen  had  died  since  the  passing  of  the  decree ;  and 
that  she  had  obtained  letters  of  administration  with  the  will 
annexed  on  his  personal  estate.  Whereupon  she  prayed,  that 
the  decree  might  be  revived  against  the  defendants  ;  that  subpoenas 
might  be  issued  against  them  ;  and  that  she  might  have  such  other 
and  further  relief  in  the  premises  as  the  nature  of  her  case  might 
require.  Upon  which  subpoenas,  in  common  form,  were  issued 
without  any  special  direction  or  order  from  the  court ;  which  hav- 
ing been  returned  summoned,  the  petitioner  moved,  that  the  decree 
might  be  ordered  to  stand  revived. 

V2th  February,  1829. — Bland,  CJiancellor. — The  motion  of  the 
petitioner  Sarah  Allen,  that  the  decree  should  be  revived  having 
been  submitted  on  her  part,  and  no  cause  having  been  shewn  to 
the  contrary,  the  proceedings  were  read  and  considered. 

The  act  of  1820,  ch.  161,  it  is  evident,  was  intended  to  provide 
a  course  of  proceeding  by  which  any  party  who  had  a  right  to 
revive  a  suit  that  had  abated,  in  the  manner  specified,  before  a  final 
decree,  might  have  it  revived  in  a  mode  less  expensive  and  dilatory 
than  in  the  common  way  by  a  bill  of  revivor.  It  is  manifest,  that 
the  general  object  of  that  law  was  to  shorten  and  envigorate  the 


ALLEISi  V.  BURKE.  545 

proceedings  in  cliancciy.  It  certainly  cannot  be  considered  as 
embracing  any  cases  of  abatement  after  a  decree ;  because  its 
phraseology  expressly  refers  to  cases  which  have  not  been  brought 
to  a  termination,  and  to  suits  where  "  such  final  decree  as  to  richt 
shall  appertain,"  remains  to  be  made  ;  and  also,  because  it  could 
not  have  been  the  intention  of  the  legislature  to  provide  a  new 
mode  of  proceeding  more  expensive  and  less  energetic  than  one 
already  well  established  ;  as  is'  the  case  in  suits  abating  by  the 
death  of  a  party  after  a  decree. 

According  to  the  course  of  proceeding  in  chancery,  where  a 
party  dies,  or  a  female  plaintiff  marries,  after  the  final  decree  has 
been  enrolled,  such  decree  and  proceedings  must  be  revived  by  a 
suhpana  scire  facias.  Which  mode  of  reviving  a  suit,  however, 
can  only  be  pursued  by  or  against  the  heir,  the  legal  representa- 
tives, or  those  who  are  privy  in  blood  or  contract  to  the  deceased 
party  ;  and  who,  as  such,  may  be  benefited  or  bound  by  the  decree  : 
but  they  are  precluded  from  going  into  its  merits  ;  and  upon  the 
same  principles  the  merits  of  the  decree  cannot  be  questioned  even 
on  a  bill  in  nature  of  a  bill  of  revivor  by  an  assignee  or  a  devisee. (a) 
If  the  party  summoned  fails  to  shew  cause,  or  the  cause  shewn 
should  be  deemed  insufficient,  he  may,  if  required,  be  examined 
on  interrogatories  as  to  any  matter  necessary  to  the  proceedings. 
But  where  there  have  been  any  proceedings  subsequent  to  the 
decree,  this  process  will  be  ineffectual,  as  it  revives  the  decree  only 
and  nothing  more. (6)  It  is  said,  that  in  England  it  has  become 
the  practice  to  revive  in  all  cases  indiscriminately  by  bill,  because 
of  its  having  become  unusual  to  enroll  decrees  ;  but  in  Maryland 
all  decrees  are  considered  as  enrolled  so  soon  as  they  are  signed  ;(c) 
and  consequently,  a  bill  of  revivor,  or  this  mode  of  reviving  a  suit, 
which  has  abated  after  a  decree,  by  a  subpcena  scire  Jacias,  must 
be  considered  as  the  most  regular,  if  not  in  fact  the  only  modes  by 
which  a  suit  can  properly  be  revived  in  this  court,  (c/) 

A  subpcena  scire  facias  may  be  obtained  by  petition,  and  must  be 
served  like  a  subpcena  to  answer.  On  its  appearing  by  the  return, 
that  the  process  has  been  made  known,  and  the  party  regularly 
summoned,  if  no  cause  be  shewn  to  the  contrary,  nor  any  plea  in 


(a)  Dunn  v.  Allen,  1  Vcrn.  28.3,  &  426 ;  Owen  r.  Curzon,  2  Vern.  2.37  ;  Clare  v. 
VVordell,  2  Vern.  548;  MinshuU  v.  Lord  Mohun,  2  Vern.  672.— (6)  IMitf.  Plea.  70. 
(c)  Hollingsworth  v.  McDonald,  2  H.  &  J.  237.— (rf)  Croster  v.  Wister,  2  Rep.  Chan. 
67  ;  Wharam  v.  Broughton,  1  Ves.  181 ;  White  i'.  ILipvardj  2  Ves.  461 ;  Fallovvg  0. 
Williamson,  11  Ves.  307. 

69 


546  ALLEN- V.  BURKE. 

bar,  &c.(e)  the  court  will,  without  requiring  any  appearance  to  be 
entered,  on  motion,  at  any  time  after  the  first  four  days  of  the  term 
to  which  the  party  has  been  returned  summoned,  order  the  decree 
to  stand  revived. (y)  The  court  of  chancery  in  this,  as  in  various 
other  particulars,  regulates  its  proceeding  by  analogy  to  the  course 
of  the  common  law ;  according  to  which,  where  after  judgment  a 
party  dies,  the  judgment  maybe  revived  by  a  scire  facias,  on  which, 
if  returned  made  known,  and  no  cause  is  shewn,  the  judgment  is 
at  once  ordered  to  stand  revived  without  an  appearance.  So  in 
chancery.  But  in  this  case  nothing  more  than  a  common  subpcena 
to  answer  has  been  issued.  No  subposna  scire  facias  has  been  as 
yet  either  asked  for,  issued  or  made  known.    Therefore  it  is 

Ordered,  that  the  said  petition  of  the  said  Sarah  Allen  stand 
over,  with  leave  so  to  amend  it  as  to  pray  for  a  subpoena  scire  facias., 
and  until  such  process  can  be  issued  and  returned  to  the  term  next 
after  the  same  shall  have  been  issued. 


The  petition  was  amended  as  suggested  by  this  order,  and  a 
subpcena  scire  facias,  in  the  following  form,  was  issued  : 

"  Maryland,  set : — The  State  of  Maryland,  to  Micajah  Burke, 
Elizabeth  Burke,  and  William  Comegys  of  Baltimore  county, 
Greeting :  You  are  hereby  commanded,  that  all  excuses  set  apart 
you  personally  be  and  appear  before  tlie  High  Court  of  Chancery, 
to  be  held  at  the  city  of  Annapolis  on  the  second  Tuesday  of  March 
next,  to  shew  cause,  if  any  you  have,  why  a  decree  passed  by  the 
said  court  on  the  29th  day  of  April  1828  against  you,  at  the  suit  of 
the  late  Richard  Mien,  should  not  stand  revived  against  you  at  the 
suit  of  Sarah  Allen,  administratrix  with  the  will  annexed  of  the  said 
late  Richard  Allen,  as  prayed  by  her  petition  in  the  said  court  exhi- 
bited. Hereof  fail  not,  as  you  will  answer  the  contrary  at  your 
peril.  Witness  the  Honourable  Theodorick  Bland,  Chancellor, 
this  16th  day  of  February,  Anno  Domini,  1829. 

"  Test,  Ramsay  Waters,  Reg.  Cur.  Can.^^ 

The  sheriff  on  the  6th  of  March  1829,  returned  the  writ  thus 
endorsed :  "  Summoned  Comegys,  summoned  Micajah  Burke  and 
Elizabeth  Burke. '''^  Upon  which  the  matter  was  again  brought 
before  the  court. 

18^/i  March,  1829. — Bland,  Chancellor. — It  appearing  by  the 
return  of  the  subpcena  scire  facias,  that  the  said  defendants  have 

(c)  Comber's  Case,  1  P.  Will.  767.— (f)  1  Harr.  Pra.  Cha.  670 ;  2  Harr.  Pra. 
Cha.  191 ;  2  Fowl.  Exch.  Pra.  301,  305,  419. 


GRIFFITH  V.  BRONAUGH.  547 

been  summoned,  and  no  cause  having  been  shewn,  it  is  tlierefbre 
Ordered,  that  the  said  decree  stand  revived  to  all  intents  and  pur- 
poses whatever  in  favour  of  the  said  Sarah  Allen,  administratrix 
with  the  will  annexed  of  the  said  late  Richard  Allen,  against  the 
said  defendants  Micajah  Burke,  Elizabeth  Burke,  and  William 
Comegys,  as  prayed  by  the  petition  of  the  said  Sarah. 


GRIFFITH  V.  BRONAUGH. 


The  act  of  1820,  ch.  161,  only  gives  a  new  mode  of  proceeding  in  certain  cases  in 
place  of  a  proper  bill  of  revivor. 

After  a  decree  to  account,  or  a  final  decree  a  defendant  may  reviv^e  the  suit ;  but  in 
general  he  cannot  revive  it  in  any  other  case. 

In  an  injunction  case,  it  may  be  ordered,  on  petition  of  the  defendant,  that  the  repre- 
sentatives of  the  late  plaintiff,  on  a  copy  of  the  order  being  served  on  them,  pro- 
ceed to  revive  the  suit  on  or  before  a  certain  day,  or  that  the  injunction  be  dis- 
solved. If  such  representatives  are  numerous,  widely  dis])ersed,  unknown  or 
nonresidents,  it  will  be  sufficient  to  have  it  entered  on  the  docket,  that  they  come  in 
and  revive  before  the  end  of  the  tlien  next  term. 

This  bill  was  filed  on  the  3d  of  July  1820,  by  Samuel  G.  Grif- 
fith against  John  W.  Bronaugh,  to  obtain  an  injunction  to  stay 
proceedings  at  law  on  a  judgment  recovered  by  the  defendant, 
Bronaugh,  against  the  plaintiff,  Griffith.  The  injunction  was 
granted  as  prayed.  After  which,  in  December  1820,  the  plaintiff, 
Samuel,  died  intestate,  and  administration  was  granted  on  his  per- 
sonal estate  to  Luke  Griffith  of  Harford  county  :  upon  which  the 
defendant  by  his  petition,  filed  on  the  17th  of  November  182J, 
prayed,  that  he  might  be  made  a  party,  &c.  ;  and  it  was  ordered, 
that  he  be  summoned  accordingly.  Afterwards,  Luke  Griffith  not 
having  appeared,  the  defendant,  by  his  petition  filed  on  the  11th 
February  1829,  prayed,  that  Luke  Griffith  might  be  ordered  to 
appear  and  cause  this  suit  to  be  revived,  or  that  the  injunction 
be  dissolved. 

13/^  February,  1829. — Bland,  Chancellor. — It  appears,  that 
this  defendant,  by  his  petition  of  the  17th  of  November  1821, 
suggested  the  death  of  the  plaintiff,  and  prayed  that  his  adminis- 
trator might  be  made  a  party,  evidently  with  a  view  to  have  the  suit 


548  GRIFFITH  V.  BRONAUGH. 

revived  in  the  mode  prescribed  by  the  act  of  1820,  ch.  161.  That 
act,  however,  only  gives  a  new  and  more  expeditious  mode  of  pro- 
ceeding to  those  who  could,  independently  of  its  provisions,  revive 
by  a  proper  bill  of  revivor.  It  is  a  general  rule,  that  where  a  suit 
abates,  by  the  death  of  a  party,  before  the  final  decree,  the  defend- 
ant cannot  have  it  revived ;  since  no  one  can  be  compelled  to 
commence,  renew,  or  revive  a  suit  against  another.  After  a  decree 
to  account,  by  which  both  parties  are  made  actors,  or  after  a  final 
decree,  a  defendant  may  revive ;  because  he  may  have  an  interest 
in  the  execution  of  the  decree.  The  good  sense  of  the  rule  is, 
that  in  every  case  where  a  defendant  can  derive  a  benefit  from  the 
further  proceeding,  he  may  revive. (a)  But  it  is  very  clear,  that 
this  is  not  such  a  suit  as  this  defendant  can  be  allowed  to  revive. 

The  only  object  here,  the  suit  having  been  terminated  by  abate- 
ment, is  to  have  the  injunction  dissolved  so  as  to  enable  this  defend- 
ant to  proceed  at  law.  Which,  according  to  the  course  of  the 
court,  may  be  attained  by  a  petition,  as  in  this  instance,  praying 
that  the  administrator  of  the  deceased  plaintiff  may  revive  within 
a  stated  time,  or  that  the  injunction  stand  dissolved.  For,  although 
in  strictness  the  whole  proceedings  are  abated  by  the  death  of 
either  party,  yet  the  injunction,  being  a  judgment  of  the  court, 
continues  in  full  force  until  it  has  been  dissolved  by  the  court 
itself.  (6) 

Whereupon  it  is  ordered,  that  the  petition  of  the  said  defendant, 
filed  on  the  17th  of  November  1821,  be  and  the  same  is  hereby 
dismissed  with  costs.  And  it  is  further  ordered,  that  the  injunc- 
tion heretofore  granted  in  this  case  be  dissolved  after  the  14th  day 
of  March  next,  unless  the  said  Luke  Griffith,  administrator  of 
the  late  Samuel  G.  Griffith,  before  that  day  proceed  to  revive  the 
said  suit.  Provided  that  a  copy  of  this  order,  together  with  a 
copy  of  the  said  petition  filed  on  the  11th  instant,  be  served  on  the 
said  Luke  on  or  before  the  2d  of  March  next. 


Upon  a  copy  of  this  order  the  sheriff  of  Harford  county  made 
return  on  oath,  that  Luke  Griffith  therein  named  resided  out  of  the 
State  of  Maryland.  Upon  which  the  case  was  again  brought 
before  the  court. 


(a)  Lord  StowcU  v.  Cole,  2  Vern.  219 ;  Williams  v.  Cooke,  10  Ves.  406 ;  Hor- 
wood  V.  Schmcdcs,  12  Vcs.  311.— (6)  Gilb.  For.  Rom.  108;  iNewl.  Chan.  229; 
Eden.  Inj.  93. 


GRIFFITH  V.  BRaNAUGH.  549 

19tk  March,  1829. — Bland,  Chancellor. — It  is  a  general  rule 
of  this  court,  that  the  legal  representatives  of  a  deceased  party 
must  be  served  with  notice  to  revive  the  suit  within  a  limited  time 
before  the  injunction  can  be  dissolved. (c)  But  this  rule  must  be 
relaxed  to  meet  the  justice  of  the  case,  and  accommodated  to  the 
exigency  of  circumstances. (e)  Where  it  was  shewn,  that  the 
legal  representatives  of  the  deceased  were  numerous,  much  dis- 
persed, and  not  well  known,  and  that  it  would  be  difficult,  if  not 
impossible,  to  serve  any  order  upon  them  ;  it  was  on  motion 
ordered,  that  unless  the  representatives  of  the  complainant  should 
come  in  before  the  end  of  the  next  term  and  cause  the  suit  to  be 
revived,  the  injunction  should  stand  dissolved. (y)  In  the  case 
under  consideration  it  appears,  that  the  order  could  not  be  served 
"within  the  State  ;  on  consideration  of  which  and  the  length  of  time 
that  has  elapsed  since  the  death  of  the  late  plaintiff,  I  deem  this  a 
case  in  which  it  becomes  necessary  to  depart  from  the  general  rule. 

Whereupon  it  is,  on  motion  of  the  defendant  by  his  solicitor. 
Ordered,  that  unless  the  said  Luke  Griffith,  or  some  other  legal 
representative  of  the  said  late  Samuel  G.  Griffith,  to  whom  the 
light  belongs,  shall  come  in  before  the  end  of  the  next  term  and 
cause  this  suit  to  be  revived,  the  said  injunction  heretofore  granted 
shall  stand  dissolved  after  that  time. 


Under  this  order  the  bill  was  on  the  30th  of  September  1829 
dismissed ;  but  being  soon  after  reinstated  by  consent,  Luke  Grif- 
fith, the  administrator,  was  admitted  as  plaintiff  in  place  of  his 
intestate,  and  Bronaugh,  the  defendant,  filed  his  answer,  to  which 
the  plaintiff  put  in  a  general  replication,  and  a  commission  issued 
to  take  testimony,  which  having  been  returned  without  any  having 
been  taken,  the  case  was  set  down  for  final  hearing ;  and  on  the 
18th  of  January  it  was  decreed,  that  the  injunction  be  perpetual. 

(c)  Duke  of  Chandos  v.  Talbot,  Select  Ca.  Chan.  24.— (e)  Eden.  Inj.  40,  66; 
1  Fow.  Ex.  Pra.  287.— (/)  Carter  v.  Washington,  1  Hen.  &  Mun.  203 ;  Kenner  v. 
Hord,  1  Hen.  &  Mun.  204. 


550  SNOWDEN  V.  SNOWDEN. 


SNOWDEN  V.  SNOWDEN 

It  is  suflScient;  tliat  the  answer  of  an  adult  defendant  be  sworn  to  before  some  judge 
or  justice  of  the  peace  within  the  State. 

It  was  formerly  the  practice  to  send  the  commission  to  four,  but  now  it  is  sent  to 
only  one  commissioner  to  appoint  a  guardian  and  take  the  answer  of  an  infant 
defendant  within  the  State.  If  a  person  appointed  as  such  a  guardian  accepts  the 
trust,  he  may  be  compelled  to  answer.  But  if  the  infant  defendant  be  out  of  the 
State,  the  commission  to  appoint  a  guardian  and  take  his  answer  must  be  sent  to 
three  persons. 

The  express  provisions  of  a  constitutional  act  of  Assembly  cannot  become  obsolete, 
and  are  of  superior  authority  to  any  usage  or  adjudged  case  whatever. 

If  a  defendant  be  not  in  fact  a  nonresident,  the  order  of  publication  against  him  is  a 
nullity. 

This  bill  was  filed  on  the  28th  of  February  1829,  by  Thomas 
Snowden  jun'r,  John  Contee  and  ^7in  Louisa  his  wife,  Albert  Fair- 
fax and  Caroline  E.  his  wife,  Timothy  P.  Andrews  and  Emily  R. 
his  wife,  against  Richard  JV.  Snowden.  The  bill  states,  that  the 
plaintiffs  were  tenants  in  common  with  the  defendant  of  a  tract  of 
land,  which  would  not  admit  of  partition  without  injury  or  loss  ; 
that  the  defendant  is  an  infant ;  and  that  he  "  is  a  citizen  of  Ann 
Arundel  county,  but  is  at  this  time  in  the  State  of  New  York." 
Upon  which  they  prayed,  that  the  land  might  be  sold  to  effect  a 
division ;  and  that  a  subpoena  might  issue  against  the  defendant. 
The  plaintiffs  sued  out  a  commission  in  the  usual  form  directed  to 
Benjamin  Allen  alone,  of  the  State  of  New  York,  authorizing  him 
to  appoint  a  guardian,  and  to  take  the  infant's  answer  by  such 
guardian.  Which  he  did,  and  returned  the  answer  accordingly. 
The  whole  proceeding  being  in  precisely  the  same  form  as  if  such 
a  commission  had  gone  to  one  commissioner  only  within  the  State, 
to  obtain  the  answer  of  an  infant  defendant  residing  here. 

iSth  April,  1829. — Bland,  Chancellor. — On  adverting  to  the 
act  of  Assembly  in  relation  to  this  malter,(a)  I  deemed  this  pro- 
ceeding erroneous :  whereupon  the  plaintiffs  on  the  15th  instant 
filed  their  petition  praying  for  a  commission  to  three  persons  therein 
named,  and  again  submitted  their  case  upon  the  notes  of  their 
solicitor,  which  with  the  proceedings  were  read  and  considered. 

According  to  the  English  course  of  proceeding  it  would  seem  to 
be  a  general  rule,  that  the  defendant  must  appear  in  person  and 
swear  to  his  answer  before  one  of  the  masters  in  chancery.     This 


(a)  1797,  ch.  114,  s.  5. 


SNOWDEN  V.  SNOWDEN.  552 

was  greatly  inconvenient  to  defendants  who  resided  at  any  distance 
from  the  place  where  the  court  was  held.  Hence  at  first  as  an 
indulgence  and  by  a  special-  order,  but  now  and  for  a  long  time 
past,  where  a  defendant  resides  more  than  twenty  miles  from  Lon- 
don, or  is  unable  to  travel,  it  is  a  matter  of  course  to  issue  a  dedi- 
mus  potestatcm  to  take  his  answer. (6)  And  the  four  commission- 
ers, to  whom  the  dedimus  is  directed,  are  named  by  the  parties, 
and  approved  in  like  manner  as  commissioners  for  takinsr  testi- 
mony ;  any  three  or  two  of  whom  are  to  take  the  answer.(c) 

With  regard  to  an  infant  defendant,  however  distant  within  the 
kingdom  he  may  reside,  he  must  be  brought  in ;  because  the  court 
must  see,  from  inspection  and  observation,  that  he  is  an  infant,  for 
whom  it  is  necessary,  that  a  guardian  should  be  appointed  by 
whom  he  may  answer.  But  if  the  infant  be  abroad,  or  unable  to 
attend,  a  commission  must  go  to  appoint  a  guardian  and  take  his 
answer  by  such  guardian.  The  dedimus  or  commission,  in  such 
case  is  similar ;  the  four  commissioners  are  appointed  in  the  same 
way  as ;  and  it  is  executed  in  all  respects  like,  that  which  goes  to 
take  the  answer  of  an  adult  defendant  who  resides  more  than 
twenty  miles  from  London. ((f) 

The  practice  in  ]\Iar)^-land  is  different.  I  have  met  with  no  evi- 
dence, that  it  ever  was  at  any  time,  either  before  or  since  our 
revolution,  the  practice  of  this  court  to  have  the  defendant  actually 
brought  in  merely  to  swear  to  his  answer  before  the  Chancellor  or 
the  register  of  the  court.  It  appears  to  have  been  always  the  prac- 
tice here  for  the  defendant  to  swear  to  his  answer  before  a  judge 
or  a  justice  of  the  peace,  which  when  thus  authenticated  and  filed, 
has  been  uniformly  received  and  dealt  with  as  an  answer. (e)  This 
practice  is  admitted  on  all  hands  to  be  exceedingly  convenient, 
and  I  have  never  heard  of  the  slightest  evil  arising  from  it.  But 
if  a  defendant  neglects  or  refuses  thus  to  answer,  he  may  be 
attached  and  committed  to  close  custody  until  he  does  answer,  (y) 

(6)  1  Harr.  Pra.  Chan.  283;  1  Newl.  Chan.  12-f— (c)  1  Harr.  Pra.  Chan.  288. 
(d)  Marlborough  v.  Marlborough,  1  Dick.  74  ;  Jongsma  v.  Pfiel,  9  Vcs.  357;  Tap- 
pen  V.  Norman,  11  Ves.  563. — (e)  Brice  v.  Alexander,  MS.  Chan.  Proc.  lib.  W.  K. 
No.  1,  fol.  43  ;  MackaU  v.  Morsell,  MS.  Chan.  Proc.  lib.  W.  K.  No.  1,  fol.  223. 
(/)  Cooper  V.  Cooper,  1788,  MS.  Chan.  Proc.  lib.  S.  H.  H.  let.  B.  fol.  351. 

Bowie  v.  Mockbee. — December  1780. — Rogers,  Chancellor. — On  motion  of  the 
complainant's  solicitor,  ordered,  that  the  defendant  stand  committed  to  close  custody 
of  the  sheriff  of  Prince  George's  county,  to  remain  in  custody  of  the  said  sheriff 
until  the  said  defendant  shall  put  in  and  file  a  good  and  sufficient  answer  in  this  case, 
and  pay  the  costs  of  the  said  attachment  of  contempt  issued  against  him  in  the  cause 
aforesaid. —  Chan.  Proc.  Lib.  No.  l^fol.  295. 


552  SNOWDEN  V.  SNOWDEN. 

If  an  adult  defendant  reside  abroad  or  beyond  the  jurisdiction  of 
the  court  it  has  been  the  practice,  ^vhere  he  himself  wishes  or  is 
willing  to  answer,  to  issue  a  commission,  on  petition,  for  taking 
his  answer  io  four  commissioners.  And  the  course  of  proceeding 
in  such  case  appears  to  be  substantially  similar  to  the  English 
mode  of  obtaining  the  answer  of  a  defendant  who  resides  abroad  or 
at  a  greater  distance  than  twenty  miles  from  London,  (g) 

It  would  seem,  that,  according  to  the  course  of  proceeding  in 
the  English  Court  of  Chancery,  there  may  be  a  material  distinction 
between  a  guardian  ad  litem  of  an  infant  defendant,  and  a  guar- 
dian having  no  other  concern  with  the  case  than  merely  to  answer 
the  bill.  The  guardian  ad  litem  must  not  only  answer  the  bill,  but 
is  bound  to  inform  himself  of  all  circumstances,  and  to  make  as 
good  a  defence  for  his  ward  as  the  nature  of  his  case  will  admit ; 
while  on  the  other  hand,  as  it  would  seem,  the  duty  of  a  guardian 
to  answer  only,  extends  no  further  than  merely  to  the  making  and 
filing  of  an  answer.  (A)  But  however  this  may  be  in  England,  I 
have  met  with  no  clear  unequivocal  evidence  of  any  such  distinc- 
tion ever  having  prevailed  here.(i)  In  all  cases  in  this  court  the 
guardian  of  an  infant  defendant,  whether  appointed  by  a  special 
order,  or  under  a  commission,  has  always  been  considered  and 
treated  as  a  guardian  ad  litem,  appointed  for  the  purpose  of 
answering  and  defending  the  suit,  and  whose  duty  it  is  not  only  to 
answer  the  bill,  but  to  make  the  best  defence  he  can  according  to 
the  circumstances,  for  the  benefit  of  his  ward  ;  and  this  appears  to 
have  been  recognised  as  the  duty  of  such  a  guardian  by  our  acts 


(g)  Hornby  v.  Pemberton,  Mosely,  57;  Prout  v.  Slater,  MS.  3d  April,  1799, 
Chan  Proc.  lib.  S.  H.  H.  No.  7,  fol.  25 ;  Chan.  Proc.  1761,  lib.  D.  D.  No.  J.  fol.  59. 
(A)  1  Newl.  Chan.  105,  138;  2  Newl.  Chan.  152;  1  Hair.  Pra.  Chan.  70S. 

(i)  Chapman  v.  Barnes. — This  was  a  creditor's  bill  filed  against  the  heir  and 
administrator  of  the  late  Richard  Barnes  to  have  his  land  sold  for  the  payment  of  his 
debts.  The  bill  stated,  that  Mary  E.  Barnes,  the  heir  of  Richard  her  father,  was  an 
infant,  and  prayed  a  subpcena  against  her  as  well  as  against  the  administrator ;  a  sub- 
poena was  issued  accordingly,  and  aftenvards  a  commission  was  issued  in  the  usual 
way  to  take  the  answer  of  the  infant,  under  which  her  answer  was  returned  and  filed 
on  the  24th  of  February  1814. 

I9th  March,  1S14. — Kilty,  Chancellor. — A  motion  was  made  by  counsel  for  the 
appointment  of  a  guardian  to  defend  for  the  infant  Mary  Elizabeth  Barnes,  according 
to  the  practice  in  England.  The  Chancellor  is  not  apprised  of  its  having  been  done 
in  this  State  ;  but  such  a  practice  appearing  to  be  equitable  and  probably  necessary, 
it  is  hereby  ordered,  that  John  Barnes,  of  Charles  county,  be  and  ho  is  hereby 
appointed  guardian  for  the  said  Mary  Elizabeth  Barnes,  to  defend  on  her  behalf  the 
said  suit. 


SNOWDEN  V.  SNOAVDEN.  553 

of  Assembly  in  relation  to  this  matter. (J)  It  appears  to  have  been 
formerly  usual,  where  the  infant  resided  within  the  State,  either 
to  have  him  brought  into  court  by  the  messenger,  if  able  to  attend, 
and  a  guardian  assigned  him,  by  whom  he  was  to  answer, (^')  or 
to  issue  a  commission  to  four^  or  a  plurality  of  persons,  any 
three  or  two  of  whom  were  authorized  to  appoint  a  guardian  and 
take  his  answer  by  such  guardian  in  exact  conformity  to  the  Eng- 
lish practice. (/) 

If  it  appears  upon  the  face  of  the  proceedings,  or  upon  enquiry 
into  the  fact,  that  the  defendant  is  an  infant,  the  court  cannot  pro- 
ceed without  a  guardian  to  answer  and  defend  for  him  ;{in)  and  for 
that  purpose  the  court  may  either  have  him  brought  before  it,  or 
allow  a  commission  to  be  issued,  w^hich  is  now  much  the  more 
usual  course  ;  for,  although  there  can  be  no  doubt  of  the  power  of 
the  court  to  have  an  infant  defendant  brought  in  from  any  part  of 
the  State  ;(n)  yet  it  is  rarely  found  to  be  convenient,  or  necessary 
to  do  so  merely  for  the  purpose  of  assigning  to  him  a  guardian  ad 
litem.  If  a  guardian  so  appointed  refuses  to  act,  or  after  accept- 
ing the  trust  dies,  another  may  be  appointed  in  his  stead  by  special 
order  or  under  a  commissiQn.(o)  But  although  a  person  appointed 
guardian  ad  litem  cannot  be  compelled  to  take  upon  himself 
the  trust ;  yet  if  he  does  accept  it,  he  may  be  compelled  by  attach- 
ment to  appear  and  answer. (/>)     For  a  long  time  past  it  has  been 


{j)  1785,  ch.  72,  s.  1 ;  1797,  ch.  114,  s.  3.— (/t)  Eyles  v.  Le  Gros,  9  Ves.  12; 
HiU  V.  Smith,  1  Mad.  Rep.  290.— (Z)  Gist  v.  Gist,  3d  November  1798,  Chan.  Proc. 
lib.  S.  H.  II.  No.  7,  fol.  48,  52 ;  JMerriweather  v.  Hood,  MS.  June  1800  ;  McCoy  v. 
Springer,  MS.  October  1800.— (m)  Roberts  v.  Stanton,  2  I\Iun.  133.— (n)  Dulany  v. 
Frazer,  MS.  per  Hanson,  Chancellor,  19tli  November,  1792. 

Griffith  V.Davis. — 1789. — Rogers,  Chancellor. — On  motion  of  complainant's 
counsel,  ordered,  that  the  messenger  bring  into  court  the  body  of  Henrietta  Davis,  the 
infant,  on  the  fourth  day  of  next  court,  she  being  heretofore  returned  by  the  sheriff  of 
Montgomery  countj',  summoned  to  appear  in  this  cause,  and  attachment  having  been 
awarded  on  her  failure  to  appear  on  the  said  summons. —  Chan.  Proc.  lib.  S.  H.  H. 
let.  C.  fol.  61. 

(0)  2  Newl.  Chan.  1.55;  "Wilson  i'.  Bott,  1  Pric.  62;  Perkins  r.  Hammond,  Dick. 
287;  Smith  v.  Marshall,  2  Atk.  70;  McMechen  v.  Evans,  MS.  3d  November  1S17. 
0>)  Taylor  v.  Durben,  1787,  Chan.  Proc.  lib.  S.  H.  H.  let.  B.  fol.  41. 

Perkins  v.  Cleaves. — February,  1790. — Hansox,  Chancellor. — Rule  that  Doc- 
tor William  Gleaves  shew  cause  to  this  court  on  the  first  of  April  next,  why  an 
attachment  should  not  issue  against  him  for  a  contempt  in  refusing  to  answer  on 
behalf  of  the  infant  to  whom  he  was  appointed  guardian  ad  litem,  by  a  commission 
issued  by  this  court  and  returned.  No  cause  having  been  shewn,  it  is  ortlered  that 
attachment  issue  against  William  Gleaves  to  answer.  See. — Chan.  Proc.  lib.  S.  H. 
H.  let.  C.fol  582. 

70 


554  SNOWDEN  V.  SNOWDEN. 

considered  as  the  settled  practice,  to  let  a  commission  go  to  one 
commissioner  only  within  the  State  to  appoint  a  guardian  and  take 
the  answer  of  aji  infant  defendant ;  which  has  been  found  to  be  so 
cheap  and  convenient  a  method,  that  I  have  never  known  a  com- 
mission, in  my  time,  to  be  issued  for  that  purpose  to  more  than 
one  commissioner  within  the  State. (9) 

In  England,  when  an  infant  defendant  resides  out  of  the  juris- 
diction of  the  court,  a  commission  may  be  sent  abroad  to  appoint  a 
guardian  and  take  his  answer,  and  on  a  supplemental  bill  being 
afterwards  filed  the  same  guardian  may  be  authorized  to  answer 
for  him.(r)  But  no  instance  has  been  shewn,  prior  to  the  year 
1797,  in  which  a  commission  has  issued  from  this  court,  to  obtain 
the  answer  of  an  infant  defendant  beyond  the  jurisdiction  of 
the  court,  to  a  single  commissioner  only.  In  the  case  cited, (s) 
the  bill  was  filed  to  obtain  a  conveyance  of  lands  in  specific 
performance  of  a  contract ;  it  was  stated  in  the  bill,  that  the 
infant  defendants  lived  in  Adams  county  in  Pennsylvania ;  and 
suhpcenas  were  prayed  generally.  Upon  which  a  commission  was, 
on  the  14th  of  December  1802,  issued  to  one  commissioner  only  in 
Frederick  county  in  this  State,  which  is  conterminous  with  Adams 
county  in  Pennsylvania ;  who  in  pursuance  thereof  appointed  a 
guardian,  stated  to  be  of  Frederick  county,  by  whom  the  answers 
were  taken  and  returned.  The  inference  from  this  case  is,  that  it 
was  believed  to  be  more  convenient  thus  to  send  the  commission 
to  one  commissioner  in  Frederick  than  to  four  in  Pennsylvania. 

Such  appears  to  have  been  the  understanding  of  the  profession 
as  to  the  practice  when  the  legislature  declared,  that  in  cases  of 
partition,  the  Chancellor  on  the  complainant's  motion  may  direct  a 
commission  to  issue  unto  three  persons  such  as  he  shall  approve, 
authorizing  them  or  any  two  of  them  to  go  to  the  infant  and 
appoint  a  guardian  for  the  purpose  of  answering  and  defending 
the  suit,  and  authorizing  them  likewise  to  take  the  answer  and 
return  it  to  the  court. (^)  Which  provision  was  afterwards  extended 
to  cases  where  all  the  persons  reside  out  of  the  State.  And  it  has 
been  also  provided,  that  in  case  of  lands  in  this  State  descending 
to  minors  residing  out  of  this  State,  on  a  bill  filed  by  the  prochein 
ami  of  any  such  minor,  a  commission  may  be  issued  to  three  per- 


((j)  Brown  v.  Brooker,  MS.  October  1800,  Uc.  &c.— (r)  Jongsma  v.  Pfiel,  9  Ves. 
357  ;  Lushington  v.  Sewell,  6  Mad.  28.— (s)  Ditfendall  D.Diffendall,  Chau.  Proc.lib. 
S.  H.  H.  No.  7,  Ibl.  148,  155.— (0   1797,  ch.  114,  s.  5. 


SNOWDEN  V.  SNOWDEN.  555 

sons  in  the  State  where  the  infant  resides,  authorizing  them  or  any 
two  of  them  to  appoint  a  guardian  to  answer  and  to  return  his 
answer.(M)  In  these  particulars  therefore  the  practice  of  the  court 
has  been  estabhshed  by  positive  legislative  enactment.  The  course 
is  prescribed  in  cases  where  it  is  said  to  have  been  doubtful  whether 
or  not  there  was  any  method  of  proceeding  whereby  the  object 
might  be  attained.  The  mode  thus  pointed  out,  cannot  be  con- 
sidered as  an  addition  to  any  antecedent  one,  since  it  is  expressly 
declared,  that  it  was  prescribed  in  order  to  remove  all  imcer- 
tainties  upon  the  subject ;  and  not  for  the  purpose  of  introducing 
a  new  form  of  proceeding  in  addition  to  an  existing  one.  It  does 
not  give  a  cumulative  remedy,  but  unalterably  settles  and  defines 
a  previous  ambiguous  practice,  so  that  the  court  might  safely 
and  readily  exercise  its  then  existing  powers.  Taking  this  view 
of  the  subject  it  clearly  follows,  that  the  court  can  have  no 
authority  to  pursue  a  course  of  proceeding  different  from  that 
which  has  been  thus  laid  down  by  the  legislature.  Any  prac- 
tice established  by  the  court  itself  may  be  altered  for  good  rea- 
sons ;  or  by  usage  such  practice  may,  and  in  many  instances 
has  gradually  glided  into  a  new  or  different  course  ;  but  the 
positive  enactments  of  the  General  Assembly  can  never  be 
disregarded. 

By  an  English  statute  enacted  in  1346, (i')  it  was  declared,  that 
the  justices  of  gaol  delivery  should  take  an  oath  before  the  Chan- 
cellor, &c.  yet  no  such  oath  is  now  taken,  and  the  statute  is  con- 
sidered as  obsolete  ',{'w)  and  by  an  act  of  Parliament,  passed 
in  1416, (.r)  it  was  declared,  that  no  one  should  sue  out  a  suh- 
pcena  in  chancery  until  he  had  given  security  for  costs  in  case 
he  failed  to  sustain  his  bill.  It  is  said,  that  this  statute  has  in 
England  by  degrees  grown  out  of  use,  and  is  now  entirely  van- 
ished.(j/)  And  against  a  statute  passed  in  the  year  1705, (z)  a 
practice  of  no  more  than  seven  years  was  allowed  to  prevail. (g) 
A  statute  passed  in  1413,(6)  directed,  that  none  should  be  elected 
members  of  parliament  who  were  not  at  the  time  resident  of  the 
place  from  which  they  were  returned.  This  is  another  instance 
wherein  the  principle  of  desuetude  has  been  avowedly  set  up 
against   an   unrepealed  legislative  enactment. (c)     And  our  own 

(w)  1818,  ch.  193,  9.  ll&l2;lS31,ch.  311,  s.  8.— (w)  20  Edw.  3,  c.  3.— (it))  Jurisd. 
Court  Chan.  13.— (x)  15  Hen.  6,  c.  4.— (?/)  1  Ilarr.  Pra.  Chan.  200;  2  Com.  Dig. 
371.— (r)  4  &  5  Anne.— (ff)  Regina  r.  Ballivos  dc  Bewdley,  1  P.  Will.  223  ;  Money 
V.  Leach,  3  Burr.  17-55,— (i)  1  Hen.  5,  c.  1.— (c)  2  Hall.  Mid.  Ages,  156. 


556  SNOWDEN  V.  SNOWDEN. 

act,((/)  which  positively  prohibits  clerks  and  registers  from  suffer- 
ing the  papers  and  records  to  be  taken  out  of  their  offices,  appears 
to  have  bqen  so  long  and  so  generally  disregarded  as  to  have  fallen 
into  oblivion. (c) 

These  precedents  would  seem  to  sanction  the  position,  that  a 
positive  legislative  enactment  may  be  virtually  repealed  by  a  long, 
general,  and  uninterrupted  course  of  practice.  But  they  are  pre- 
cedents which  I  should  feel  a  great  repugnance  to  adopt  and 
enlarge  upon.  I  hold  it  to  be  my  duty  to  treat  the  acts  of  my  pre- 
decessors wath  respect ;  and  ^  yield  implicit  obedience  to  my 
superiors  ;  yet  I  cannot  lose  sight  of  the  sphere  assigned  to  the 
judiciary,  and  allow  myself,  by  any  suggestion  arising  from  the 
case,  or  by  following  any  lightly  considered  precedent,  to  overstep 
the  limits  constitutionally  prescribed  to  the  judicial  department  to 
which  I  belong.  No  judge  or  court,  either  of  the  first  or  last 
resort,  can  have  any  right  to  legislate ;  and  there  can  be  no  differ- 
ence between  the  power  to  declare  an  act  of  Assembly  obsolete, 
and  the  power  to  enact  a  new  law.  The  power  to  repeal  and  to 
enact  are  of  the  same  nature.  I  shall  therefore  always  consider  an 
express  provision  of  a  constitutional  act  of  Assembly  as  an  autho- 
rity superior  to  any  usage  or  adjudged  case  whatever. 

The  first  enactment  upon  this  subject(y")  is  strictly  and  literally 
applicable  to  the  taking  of  an  answer  of  an  infant  abroad  in  a  par- 
tition case,  such  as  this  is  ;  and  that  act  has,  as  it  would  seem, 
been  since  much  extended. (of)     Hence  I  hold  myself  imperatively 


(f/)  1747,  ch.  3,s.  10.— (e)  1332,  ch.  302,  s.  !.—  (/)  1797,  ch.  114,  s.  5.— (g)  1S18, 
ch.  193,  s.  11  8c  12. 

BuRD  r.  Grf.enleaf. — It  was  objected  in  this  case,  that  all  the  parlies  were  not 
before  the  court.  Publication  ajrainst  the  infant  heirs  of  a  defendant  had  been  made 
according  to  the  act  of  1799,  ch.  79,  s.  1  &,  4,  instead  of  serving  a  subpccna  upon 
them. 

February,  1S06. — Kiltv,  Chancellor. — It  appears,  that  the  general  acts  of  Assem- 
bly for  regulatin:;  the  chancery  practice  do  not  extend  to  infants,  but  that  particular 
acts  have  been  passed  for  the  purpose  of  binding  them ;  as  in  the  cases  of  contracts 
by  their  ancestors,  mortgages,  debts,  partition,  &c.  The  first  section  of  the  act  of 
1795,  ch.  88,  did  not,  as  the  complainants  have  contended,  extend  to  infants,  but  pro- 
vided for  publication  against  persons  of  full  ago.  The  act  of  1799,  ch.  79,  put  infants 
on  the  same  footing  with  other  defendants,  excepting  reserving  at  all  events  the 
liberty  of  appearing  within  eighteen  months.  This  section  is  not  restricted  to  laws 
within  the  first  section  of  the  same  act,  but  is  applicable  also  to  the  first  section  of 
the  act  of  1795,  or  any  other  general  act.  Let  us  examine  the  intention  of  the  two 
acts.  The  act  of  1795  permits  an  appearance  and  re-examination  within  eighteen 
months,  and  the  fust  decree  is  of  course  not  final.  The  reason  of  which  might  be, 
that  llierc  could  be  no  certainty  of  the  absent  defendant  having  seen  the  publication. 


SNOAVDEN  V.  SNOWDEN.  557 

bound  by  the  legislative  rule  thus  laid  down.  But  precedents  have 
been  adduced  to  shew,  that  this  legislative  rule  has  become  obso- 
lete, or  that  another  and  equally  efhcacious  parallel  mode  of  pro- 
ceeding had  been  in  force,  and  is  now  in  use.  All  the  precedents, 
I  have  seen,  of  commissions  for  taking  answers  abroad,  are  tliose 
of  adult  defendants  ;  in  all  of  which  the  commission,  as  in  Eng- 
land, was  directed  to  Jour  commissioners.  I  have  been  referred 
to  no  example  of  a  commission  to  take  the  answer  of  an  infant 
defendant  who  resided  in  a  foreign  country  or  any  other  State  of 
our  Union  ;  nor  have  I  met  with  any.  But  prior  to  and  about  the 
year  1797,  it  was  the  practice,  as  well  in  cases  of  infant  defend- 
ants within,  as  of  adult  defendants  out  of  the  State,  to  send  the 
commission  to  four  or  at  least  a  plurality  of  commissioners  ;  and 
hence  the  first  legislative  enactment,  in  relation  to  this  matter,(/i) 
cannot  be  regarded  as  in  any  sense  leaving  an  old  and  parallel 
practice  in  full  force ;  since  it  was  the  practice  in  all  cases  to  send 
the  commission  to  a  plurality  of  commissioners.  The  cases  that 
have  arisen  since  the  passage  of  that  act,  can  therefore  only  be 
regarded  as  evidence  of  a  departure  from  the  legislative  rule,  and 
not  as  proof  of  a  coexisting  parallel  practice.  There  have  been 
only  four  cases  adduced  as  shewing  a  departure  from  the  directions 
of  the  act ;  and  all  of  them  are  cases  of  commissions  directed  to 
one  commissioner  only,  in  the  District  of  Columbittj  to  take  the 
answers  of  infants  resident  there,  [i]  All  of  those  cases  manifestly 
appear  to  have  passed  sub  silentio  ;  and,  I  can  readily  conceive 
how  easily  such  a  proceeding,  which  had  become  the  established 
mode  of  obtainins:  an  answer  from  an  infant  defendant  within  this 
State,  should  have  been  pursued  as  a  correct  way  of  getting  an 
answer  from  an  infant  defendant  residing  in  Washington  county 
of  the  District  of  Columbia,  which  had  formerly  been  a  part  of  this 

The  act  of  1799  makes  the  first  decree  final,  provided  the  subpana  is  proved  to  be 
served.  There  is  no  doubt  a  considerable  difficulty  in  making  this  service  and  prooi", 
where  the  party  is  out  of  the  State ;  but  the  complainant,  in  any  case,  lias  his  choice 
of  tlie  two  modes  of  proceeding.  The  difficult^'  of  sen-ing  tlie  subpoena  is  greater  as 
to  the  infants.  And  the  reason  does  not  apply  to  them,  for  after  such  service,  the 
eighteen  months  is  still  allowed  to  them.  The  act  of  1793  allows  the  publication, 
which  by  the  fourth  section  of  the  act  of  1799  applied  to  the  infant  defendants  in  this 
case.  The  order  may  be  considered  as  made  under  either  act,  according  as  the  sub- 
pczna  might  or  might  not  be  served,  and  the  service  might  have  been  directed  with 
that  view. 

(h)  1797,  ch.  114,  s.  5.— (t)  Low  v.  Dawson,  MS.  30th  September,  1818  ;  Bur- 
gess V.  The  Bank  of  Columbia,  MS.  13th  April  1820;  Law  ».  Law,  MS.,  6th  Decem- 
ber 1S24 ;  Shaaf  v.  Taney,  MS.  10th  May  1826. 


558  SNOWDEN  V.  SNOWDEN. 

State.  Such  precedents  are  generally  considered  to  be  of  the 
lowest  class ;  but  when  adduced  for  the  purpose  of  controlling  or 
abrogating  an  act  of  Assembly,  they  cannot  be  allowed  the  weight 
of  a  feather. 

The  original  act(j)  speaks  of  an  infant  residing  out  of  the 
State ;  and  the  mode  which  it  prescribes,  for  obtaining  the  answer 
of  such  an  infant,  is  clearly  one  which  may  now  be,  and  was  for- 
merly very  commonly  pursued  for  obtaining  the  answer  of  an  infant 
within  the  State  ;  and  therefore,  whether  the  infant  is  considered  as 
being  at  the  time  a  nonresident,  in  every  sense  of  that  term,  or 
not,  is  unimportant.  It  is  suflScient,  that  he  is  then,  when  the 
answer  is  taken,  in  the  state  or  country  to  which  the  commission 
is  directed  :  for,  if  he  has  a  guardian  appointed  by  whom  his  answer 
is  taken  in  the  most  formal  manner,  so  as  to  warrant  its  being 
received  whether  he  is  considered  as  a  resident  within  or  out  of 
the  State ;  then  the  answer,  being  in  a  form  to  suit  either  alterna- 
tive, it  becomes  unnecessary  to  decide  whether  he  was,  at  the  time 
of  its  being  taken,  a  mere  sojourner  abroad,  or  actually  "  residing 
out  of  the  State,"  or  not. 

The  case  of  publication  against  a  nonresident,  presents  an 
entirely  different  question ;  because  the  publication  is  to  stand  in 
the  place  of  actual  notice  only  in  case  the  party  be  in  truth  a  non- 
resident ;  and  therefore,  if  he  does  not,  in  fact,  at  the  time,  reside 
out  of  the  State,  such  a  substitute  for  the  actual  service  of  process 
cannot  be  resorted  to,  for  the  purpose  of  enabling  the  court  to  act 
upon  the  case  ;  and  therefore,  the  decree  will  be  void :  since  the 
publicatioji  against  a  nonresident  can,  in  no  way,  be  fashioned, 
like  a  commission  to  take  the  answer  of  an  infant  defendant,  to  suit 
both  alternatives  of  a  residence,  or  a  non-residence ;  and  conse- 
quently, if  the  publication  be  not  valid  upon  the  ground  of  the 
actual  nonresidence  of  the  party,  it  is  a  nullity  to  all  intents  and 
purposes  whatever. 

Whereupon  it  is  ordered,  that  a  commission  issue  as  prayed  by 
the  said  petition  of  the  plaintiffs  filed  on  the  15th  instant. 


A  commission  was  issued  and  an  answer  returned  accordingly ; 
after  which,  on  the  8th  May  1829,  it  was  decreed  that  the  real 
estate  be  sokl,  &c. 


ij)  1797,  ch.  114,  s.  5. 


MAYER  V.  TYSON.  559 


MAYER  V.  TYSON. 

An  answer  held,  on  exceptions,  to  be  insufficient,  is  as  no  answer. 

If  a  defendant  does  not,  after  exceptions,  put  in  a  sufficient  answer,  as  ordered,  the 
bill  may  be  taken  pro  confesso  and  a  final  decree  passed ;  or  the  case  may  be  prose- 
cuted, as  against  the  other  defendants,  to  a  final  decree. 

Under  what  circumstances,  and  at  what  stage  of  the  case  the  plaintiff  may  be 
required  to  give  security  for  costs. 

This  bill  was  filed  on  the  10th  of  December  1827,  by  Lewis 
Mayer  and  Isaac  Lohnian,  of  the  city  of  Philadelphia,  partners 
trading  under  the  firm  of  Mayer  Sf  Lohman,  against  Thomas  Tyson, 
Richard  H.  Douglas,  Christian  Keller,  Isaac  Tyson  jun'r,  JYathan 
Tyson,  Benjamin  P.  Moore,  John  Glenn,  and  Joaquim  de  Mier. 

The  bill  states,  that  the  defendant  Thomas  Tyson  had  purchased 
of  the  plaintiffs  a  large  quantity  of  rum  and  brandy,  for  which  there 
was  then  due  a  balance  of  $1425  54 ;  that  the  defendant  Thomas, 
being  in  an  insolvent  condition,  had  by  a  deed  assigned  all  his  pro- 
perty to  the  defendants,  Richard,  Christian,  Isaac,  JS^athan,  and 
Benjamin,  in  trust  for  the  benefit  of  such  of  his  creditors  as  should 
release  their  respective  claims  within  a  certain  time  ;  that  these 
plaintiffs  had  not  so  released  their  claim ;  that  the  defendant  Tho- 
mas had  applied  for  and  obtained  the  benefit  of  the  insolvent  law, 
under  which  the  defendant  John  had  been  appointed  his  trustee; 
that  the  rum  and  brandy  purchased  by  the  defendant  T/iomas  of 
these  plaintiffs  was  in  fact  bought  by  him  merely  as  the  agent  of 
the  defendant  Joaquim,  w^ho  was  in  truth  the  real  debtor  to  the 
plaintiffs ;  that  the  defendants  who  were  the  trustees  of  the  defend- 
ant Thomas  had  brought  suit  against  the  defendant  Joaquim  to 
recover  the  amount  due  from  him  for  the  rum  and  brandy  so  pur- 
chased, with  a  view  to  have  it  applied,  according  to  their  trusts,  in 
satisfaction  of  the  creditors  of  the  defendant  Thomas.  Whereupon 
the  plaintiffs  prayed,  that,  as  the  debt  due  from  the  defendant 
Joaquim,  to  the  amount  due  to  therh,  was  properly  owing  to  them, 
they  might  be  first  satisfied,  &c. 

All  the  defendants  answered  jointly  or  separately,  except  Joa- 
quim, who  being  a  nonresident,  publication  was  made,  warnino- 
him  to  appear,  &c.  To  the  answer  of  the  defendant  Thomas  the 
plaintiffs  filed  exceptions ;  because  of  its  being,  as  they  alleged, 
insufficient  in  several  specified  particulars.  Upon  which  it  was 
ordered,  that  those  exceptions  stand  for  hearing  on  the  15th  of 


560  MAYER  V.  TYSON. 

April  1828  ;  provided  a  copy  be  served,  &.c.    Which  having  been 
served  as  required,  the  matter  was  submitted. 

215^  April,  1828. — Bland,  Chancellor. — Ordered,  that  the  excep- 
tions of  the  plaintiffs  to  the  answer  of  the  defendant  Thomas  Tyson 
be  and  they  are  hereby  ruled  good  ;  and  that  he  make  a  sufficient 
answer  to  all  the  several  matters  and  allegations  of  the  bill  on  or 
before  the  second  day  of  June  next,  or  the  same  may,  after  that 
day,  be  taken  pro  corifesso. 

The  time  allowed  by  this  order  for  putting  in  a  sufficient  answer 
having  elapsed,  and  the  defendant  Thomas  Tyson  having  failed  to 
answer  as  required,  the  plaintiffs  brought  the  matter  before  the 
court,  and  moved  that  the  case  might  proceed  as  against  him,  and 
the  other  defendants. 

IQth  July,  1828.^Bland,  Chancellor. — Where  the  answer  of 
the  only  person  who  has  been  made  a  defendant  is,  upon  excep- 
tions, held  to  be  insufficient,  the  plaintiff  is  authorized,  according 
to  the  English  course  of  proceeding,  to  take  the  case  up  where  it 
stood  when  the  insufficient  answer  was  filed,  and  proceed  thence- 
forward against  the  defendant,  so  as  to  have  him  committed  to  cus- 
tody until  he  does  answer,  or  to  have  the  bill  taken  p)ro  confesso  ; 
because  an  insufficient  answer  is  as  no  answer  at  all. (a)  And  so, 
where  only  one  of  the  defendants  stands  in  the  situation  of  not 
having  answered  sufficiently,  the  like  course  must  be  had  against 
him  alone,  so  as  to  enable  the  plaintiff  to  proceed  with  effect  against 
the  other  defendants. (6) 

Upon  this  principle,  and  as  it  has  been  provided  by  our  acts  of 
Assembly,  that,  where  a  defendant  fails  to  answer,  the  bill  may  be 
taken  pro  confesso  ;(c)  so  here  where  only  one  of  the  defendants 
has  contumaciously  neglected  to  put  in  a  sufficient  answer,  after 
his  first  had  been  determined  to  be  insufficient,  it  must  be  allowa- 
ble and  is  essentially  necessary,  to  have  the  bill  taken  pro  confesso 
as  against  him  alone,  so  as  to  enable  the  plaintiff  to  proceed  safely 
and  with  effect  against  him  together  with  the  other  defendants. 

Whereupon  it  is  decreed,  that  the  bill  of  complaint  be  and  the 
same  is  hereby  taken  pro  confesso  as  against  the  defendant  Thomas 
Tyson  ;  and  the  plaintiffs  are  allowed  further  to  proceed  with  their 

(a)  Child  V.  Brabson,  2  Ves.  110  ;  Turner  v.  Turner,  Dick.  316  ;  Davis  v.  Davis, 
2  Atk.  24 ;  Darwent  v.  Walton,  2  Atk.  510  ;  Gregor  v.  Ld.  Arundel,  8  Ves.  88. 
(6)  1  Fow.  Exch.  Pra.  199 ;  Royall  v.  Johnson,  1  Rand.  421.— (r)  1799,  ch.  79,  s.  1 ; 
Clapham  v.  Clapham,  ante,  126. 


MAYER  V.  TYSON.  55^ 

case,  according  to  the  course  of  the  court,  in  such  manner  as  they 
may  deem  proper. 


After  which  the  defendants,  who  had  some  time  previously  put 
in  their  answers,  by  their  petition  prayed,  that,  as  the  plaintiffs  did 
not  reside  within  this  State,  they  might  be  ordered  to  give  security 
for  costs. 

20thJlprilj  1829. — Bland,  Chancellor.— As  the  origin  and  prin- 
ciples of  the  practice  in  relation  to  this  matter  do  not  appear  to  be 
as  generally  understood  as  they  should  be,  I  shall  avail  myself  of 
this  occasion  to  speak  of  the  subject  more  fully  than  might  other- 
wise be  deemed  necessary. 

At  common  law  a  plaintiff  was  required  in  all  cases  to  give 
pledges  to  prosecute  his  suit  with  effect,  or  to  abide  the  conse- 
quences. This  however  was  not,  strictly  speaking,  giving  security 
for  costs ;  because  although  a  plaintiff  might  be  lined  for  making 
a  false  claim,  yet  costs,  by  the  common  law,  were  not  recoverable 
in  any  case.(c^)  The  pledges  to  prosecute  have,  however,  long 
since  become  obsolete. (e)  The  rule  security  for  costs  is  applied 
only  against  nonresidents  ;  and  is  of  recent  origin  in  the  courts 
of  common  law  of  England  :  so  late  as  the  year  175,0,  in  a  case 
in  which  it  was  moved,  that  the  plaintiff,  who  was  a  merchant 
residing  in  France,  might  be  required  to  give  security  for  costs,  it 
was  refused  ;  because,  as  was  said,  it  would  affect  trade  and  be 
excluding  foreigners  from  obtaining  justice. (y)  Some  years  after- 
wards it  became  a  settled  general  rule  to  allow  the  defendant, 
even  after  issue  joined,  to  demand  security  for  costs  in  all  cases 
where  the  plaintiff  resided  beyond  the  jurisdiction  of  the  court ; 
and  on  the  security  not  being  given  to  have  the  suit  dismissed. (g-) 
But  a  resident  plaintiff,  as  it  would  seem,  cannot  be  required  to 
give  security  for  costs  merely  on  account  of  his  poverty. (/i) 

In  Maryland  a  plaintiff  was  at  no  time  required  to  give  pledges 
to  prosecute ;  but  it  appears,  that  if  a  nonresident  himself  applied 
to  sue  out  original  process  for  the  commencement  of  an  action  he 
might  be  called  on  to  give  security  for  costs, (?)  and  if  he  did  not 
himself  so   institute   his   suit,  the  attorney  employed   by  him  was 

(d)  2  Inst.  288.— (e)  3  Blac.  Com.  27-1.— (/)  Lamii  v.  Sewell,  1  Wils.  266;  Max- 
well V.  Mayer,  2  Burr.  1026. — (g)  Denn,  ex  dim.  Lucas  v.  Fulford,  2  Burr.  1177 ; 
Parquot  v.  Eling,  1  H.  Blac.  106 ;  Fitzgerald  v.  Whitmore,  1  T.  R.  362 ;  Carr  v. 
Shaw,  6  T.  R.  496.— (^)  Golding  v.  Barlow,  Cowp.  24 ;  Tidd.  Prac.  478.— (t)  1715, 
cli.  29. 

71 


562  MAYER  V.  TYSON. 

required  to  put  in  security  for  costs. (j)  By  laws,  passed  since  the 
revolutioji,  it  is  declared,  that  in  all  suits  brought  by  persons  not 
resident  of  the  State,  or  who  may  remove  out  of  it,  after  the  com- 
mencement of  the  action,  the  defendant  may  lay  a  rule,  at  or  before 
the  trial  court,  on  the  plaintiff  to  give  security  for  costs  ;  upon  the 
failure  to  comply  with  which  he  may  be  nonsuited. (/c)  It  is 
evident  from  these  and  other  legislative  enactments,  that  the  rule 
security  for  costs  as  against  nonresident,  and  in  some  instances 
against  resident  plaintiffs,  was  frequently  resorted  to  in  our  courts 
of  common  law  from  a  veiy  early  period. (Z) 

Soon  after  the  chancellorship  had  become  active  and  important 
as  a  judicial  ofnce  in  England,  it  was  declared  by  a  statute  passed 
in  the  year  1393,  that  the  Chancellor,  upon  any  suggestion  being 
found  untrue,  should  have  the  power  to  award  damages  according 
to  his  discretion  to  him  who  had  been  so  unduly  troubled.  This 
statute  is  said  to  be  the  foundation  of  the  authority  by  w^hich  costs 
in  chancery  are  given  in  England  ;  and  according  to  which  it  has 
been  the  practice  in  the  Province  and  State  of  Maryland,  and  still 
continues  to  be,  to  give  costs  in  all  cases,  except  only  in  so  far  as  it 
has  been  modified  and  controlled  by  the  constitution  and  the  acts 
of  Assembly  regulating  officers'  fees.fw)  In  the  year  1436,  to  pre- 
vent the  vexatious  institution  of  suits  in  chancery  in  England  for 
matters  determinable  by  the  common  law",  it  was  declared  by  sta- 
tute, that  no  suhpcena  should  be  granted  until  security  was  given  to 
satisfy  the  party  grieved  for  his  damages  and  expenses  if  the  mat- 
ter of  the  bill  should  not  be  made  good,(;i)  This  legislative  enact- 
ment required  a  plaintiff  in  chancery  in  all  cases  to  give  security 
for  costs.  It  is  said,  however,  that  this  law  has  by  degrees  gone 
out  of  use  or  altogether  vanished ;  and  that  an  entirely  different 

{j)  1715,  ch.  29  ;  1729,  ch.  20,  s.  2.— (/t)  1796,  cli.  43,  s.  12  ;  1801,  ch.  74,  s.  9. 
(Z)  1768,  ch.  29,  s.  24  ;  1794,  ch.  54,  s.  10;  2  Harr.  Ent.  51, 118,  617.— (m)  17  Rich. 
2,  c.  6  ;  Park.  His.  Co.  Chan.  35 ;  2  Mad.  Chan.  543  ;  liilty's  Rep.  224 ;  Declaration 
Rights,  art.  30  ;  1779,  ch.  25  ;  1S26,  ch.  247. 

"  December,  1670,  Ordered,  tliat  upon  all  rehearings  and  dismissions  tlie  costs  paid 
bcforerehearingof  the  business  to  tlie  defendant,  if  the  business  go  for  tJie  plaintiff, 
the  defendant  to  pay  back  the  said  costs  again  to  the  plaintill';  and  this  order  to  be 
observed  for  the  future  in  this  court." 

"  Ordered  also,  that  the  register  take  fees  in  this  court  as  the  officers  of  this  court 
in  England,  having  one  penny  sterling  for  every  pound  of  tobacco;  and  that  he  com- 
pute fifteen  lines  to  be  a  sheet,  and  seven  or  eight  words  in  each  line  ;  and  tliat  for 
every  such  sheet  writing,  engrossing,  copying,  or  enrolling,  he  charge  but  eight 
pounds  of  tobacco,  or  eight  pence  sterling." — <Chan.  Proc.  lib.  C.  D.  fol.  42. 

(n)  13  lien.  6,  c.  4. 


MAYER  V.  TYSON.  553 

course  has  long  prevailed  in  England. (0)  This  English  statute 
never  was  in  force  in  Maryland ;  but  here  as  in  England  security 
for  costs  might  always  have  been  required  of  a  nonresident 
plaintiff,  (p) 

In  general  the  name,  description,  and  place  of  abode  of  the  plain- 
tiff should  be  set  forth  in  the  bill,  that  the  court  and  defendants 
may  know  where  to  resort  to  compel  obedience  to  any  order  or 
process,  and  particularly  for  payment  of  any  costs  which  may  be 
awarded  against  the  plaintiff,  or  to  punish  any  improper  conduct 
in  the  course  of  the  suit.(9) 

As  to  the  cases  in  which  a  plaintiff  may  be  required  to  give 
security  for  costs,  it  may  be  regarded  as  settled,  that  when  it 
appears  upon  the  face  of  the  bill,  that  the  plaintiff  is  a  nonresident 
of  the  State,  or  where  it  is  shewn  that  the  defendant,  before  he 
answers,  knows  that  the  plaintiff,  who  does  not  belong  to  the  arm}- 
or  navy  of  the  United  States,  resides  beyond  the  jurisdiction  of 
the  court,  it  is  of  course,  on  application,  to  compel  him  to 
give  security. (?•)  But  if  the  defendant,  being  aware  of  the  non- 
residence  of  the  plaintiff,  answers  the  bill  or  applies  for  time,  secu- 
rity will  not  be  required. (.9)  If  the  plaintiff  stiles  himself  in  his 
bill,  of  a  place  where  he  cannot  be  found,  he  must  give  security 
for  costs. (f)  If  the  defendant,  at  the  time  of  answering,  be  igno- 
rant of  the  residency  abroad,  he  may  as  soon  as  the  fact  comes  to 

(0)  1  Harr.  Prac.  Chan.  200  ;  2  Mad.  Chan. . 543.— (;?)  Kilty's  Rep.  €2. 

Jakst  v.  Clause  . — It  is  alleged  by  the  attorney  for  the  defendant,  that  the  defend- 
ant is  ready  to  put  in  his  answer  to  the  plaintiffs'  bill,  provided  the  pfaintiffs  who  are 
foreigners,  and  live  out  of  the  jurisdiction  of  this  province,  or  their  attornej',  or  some 
one  else  for  them,  will  give  security  to  pay  such  costs  of  suit  as  this  court  shall 
adjudge  in  case  the  said  plaintiffs'  bill  be  dismissed. 

l-lih  February,  1670. — Per  Curiam. — Whereupon  it  is  ordered  that  no  further  pro- 
ceedings be  had  in  the  said  cause  till  such  securitj'be  given  as  aforesaid.  And  after- 
wards no  security  having  been  given  as  required,  the  bill  was  dismissed. —  Chan. 
Proc.  lib.  C.  D.  29,  41. 

{q)  1  Fow.  Exch.  Pra.  26.— (r)  1  Fow.  Exch.  Pra.  278  ;  JVIelioroucchy  v.  Melio- 
roucchy,  2  Ves.  24  ;  Dick.  147  ;  Anonymous,  10  Ves.  287;  Colebrook  v.  Jones,  Dick. 
154.— (s)  Craig  v.  Bolton,  2  Bro.  C.  C.  609.—  {t)2  Fow.  Exch.  Pra.  311  ;  Stackpoole 
V.  O'Callaghan,  1  Ball  h.  Bea.  5G6. 

Fisher  v.  Keexe. — The  plaintiff's  attornej'  being  demanded  by  this  court  if  he 
would  give  securitj'  for  costs,  if,  upon  hearing  of  the  business,  the  bill  should  be 
dismissed  ;  and  he  refusing,  the  complainant  having,  at  present,  December  1670,  no 
visible  estate  in  tlie  Province  :  It  was  Ordered  by  tiiis  court,  that  the  complainant's 
said  bill  be  dismissed  ;  and  tliat  the  said  Fisher  complainant,  or  Simon  Warren  his 
ettorney,  pay  to  the  defendant  the  sum  of  tliree  pounds  six  shillings  and  eight  pence 
for  costs  ;  and  that  decree  pass  out  of  this  court  for  the  same  against  Ihe  said  Fisher, 
or  his  attorney  Simon  Warren. —  Clian.  Proc.  lib.  C.  D.fol.  41. 


564  MAYER  V.  TYSON. 

his  knowledge,  obtain  security  ;(m)  and  the  same  rule  applies  where 
the  plaintiff  after  answer  abandons  the  State  and  resides  abroad.(v) 
But  if  the  defendant  after  being  apprised  of  the  fact,  by  an 
insufficient  answer,  or  an  answer  filed  by  mistake,  or  by  any  pro- 
ceeding- in  the  case,  recognises  the  plaintiff's  right  to  sue,  he 
cannot  obtain  security  for  costs. (w)  Nor  will  the  plaintiff  in  a 
cross  bill  be  required  to  give  security  for  costs,  though  residing 
out  of  the  jurisdiction  of  the  court.  Where  a  prochein  ami  has 
taken  the  benefit  of  the  insolvent  law,-  or  has  been  withdrawn 
and  a  new  one  appointed,  security  may  be  required  for  the  costs 
already  incurred. (a:)  And  where  a  plaintiff  is  out  of  the  reach 
of  the  process  of  the  court  by  being  under  the  protection  of 
a  foreign  ambassador,  he  may  be  required  to  give  security. (y) 
The  simple  fact  of  the  plaintiff  having  gone  abroad,  is  not  a 
sufhcient  ground  to  require  security, (c)  it  must  appear  that  he 
has  gone  to  reside  abroad. (a)  If  after  answer,  it  appears  by 
affidavit,  that  the  plaintiff,  though  gone  abroad,  intends  to  return, 
his  family  remaining  in  this  State,  he  will  not  be  compelled  to 
give  security  for  costs.  (&)  If  there  is  a  co-plaintiff  residing 
within  the  jurisdiction,  security  will  not  be  required  from  the  plain- 
tiff resident  abroad,  the  defendant  having  securityfrom  the  resident 
plaintiffs. (c)  And  although  any  monarch  of  a  foreign  nation  with 
w^hom  the  United  States  are  at  peace, (rf)  or  any  one  of  the  States 
of  the  Union  may  be  permitted  to  institute  a  suit  in  our  courts 
against  any  of  our  citizens  ;  yet  such  monarch  or  co-state  may  be 
required  to  give  security  for  costs,  (e) 

It  would  seem,  that  in  England  the  demand  upon  the  plaintiff  to 
give  security  for  costs  may  in  all  cases  be  made  either  by  motion 
or  petition  setting  forth  the  facts  upon  which  the  application  is 
made.(y)  But  here,  in  cases  where  the  fact  of  the  nonresidence 
appears  upon  the  face  of  the  bill,  it  has  always  been  the  practice  in 
this  court,  and  certainly  is  the  easiest  and  best  course,  to  move 
within  the  sittings  of  a  term,  as  at  law  to  lay  a  rule  upon  the 
docket,  that  the  plaintiff  be  required  to  give  security  for  costs  dur- 


(u)  Lonergan  v.  Rokeby,  Dick.  799.— (r)  Weeks  v.  Cole,  14  Ves.  518.— (jt;)  Dyott 
V.  Dyott,  1  Mad.  Rep.  186.— (.t)  Pennington  v.  Alvin,  1  Sim.  &  Stew.  264.— (y)  Ad- 
dei-ly  V.  Smith,  Dick.  3.55.— (2)  Hoby  v.  Hitchcock,  5  Ves.  699.— («)  Green  v.  Char- 
nock,  3  Bro.  C.  C.  371 ;  Dick.  775.— (6)  White  v.  Greathead,  15  "Ves.  2.— (c)  Winthorp 
V.  Royal  Exch.  Ass.  Comp.,  Dick.  282 ;  Walker  v.  Ea.sterby,  6  Ves.  612.— (rf)  City  of 
Berne  v.  Bank  of  England,  9  Ves.  347.— (<>)  1  Hovend.  Sup.  to  Ves.  149 ;  17S5,  ch.  36. 
(/)  2  Harr.Pra.  Chan.  60  ;  2  Mad.  Chan.  270. 


MAYER  r.  TYSON.  555 

ing  the  sittings  of  the  next  succeeding  term.(o-)  But  if  the  fact  of 
the  nonresidence  of  the  plaintiff  does  not  appear  upon  the  face  of 
the  bill ;  or  if  he  has  after  filing  his  bill  left  the  State,  then  the 
matter  must  be  brought  before  the  court  by  petition,  and  a  special 
order  obtained,  to  be  served  on  the  plaintiff's  solicitor,  or,  if  he  has 
none,  to  be  entered  short  upon  the  docket,  requiring  security  for 
costs  to  be  given,  imless  cause  shewn  by  a  particular  day.  The 
form  of  the  security  is  a  recognisance  or  bond  to  the  State  in  a 
penalty  sufficient  to  cover  the  costs,  with  surety  resident  within 
the  state,  to  be  approved  by  the  Chancellor. (A) 

In  this  case  the  bill  itself  states,  that  the  plaintiffs  are  nonresi- 
dents, and,  consequently,  the  answers  and  subsequent  proceedings 
of  the  defendants  have  amounted  to  a  waiver  of  the  right  on  their 
part  to  lay  the  plaintiffs  under  a  rule  to  give  security  for  costs. 

Whereupon  it  is  ordered,  that  the  petition  of  the  defendants  be 
and  the  same  is  hereby  dismissed  with  costs. 


This  case  was  afterwards  entered  agreed. 


(g)  Denxis,  &c.  Assignees  of  D,  A  Bankrupt,  v.  Greenbury. — 1714. —  Or- 
dered, that  security  be  given  for  costs  in  the  sum  of  five  thousand  pounds  of  tobacco  ; 
bond  to  be  given  in  six  ^eeks  or  the  bill  to  be  dismissed. —  Chan.  Proc.  lib.  P.  L. 
fol.  75. 

Falconer  v.  Blay. — 1715. — Bill  dismissed  with  costs  for  want  of  security  being 
given  according  to  the  rule  of  last  court. —  Chan.  Proc.  lib.  P.  L.fol.  122. 

Hanbury  v.  Vernon. — 1731. — Upon  motion  of  the  defendant's  counsel.  Ordered 
that  security  for  costs  be  given.  Edmund  Jenings  becomes  security  for  the  same. — 
Chan.  Proc.  Ub.  S.  E.  No.  2,  fol.  225. 

Cheney  I'.  Cheney. — 1773. — Rule  security  for  costs  and  fees  next  court. —  Chan. 
Proc.  lib.  W.K.  No.  I,  fol.  314. 

Bryden  v.  Chase. — 20th  December,  1810. — The  plaintiff  was  a  resident  of  New- 
York.  Rule  on  the  plaintiff  to  give  security  for  costs  before  the  5th  day  of  February 
term  1811.     Rule  enlarged- to  the  fourth  day  of  July  term  ISll. 

The  Lord  Proprietary  v.  Carroll. — 173S. — Information,  &.c. — Upon  motion 
of  the  defendant's  counsel,  Ordered,  that  security  for  costs  be  given  by  next  court ; 
the  person  at  whose  relation  the  information  is  filed  being  a  nonresident. —  Chan. 
Proc.  Ub.  J.  R.  No.  B,fol.  465. 

(A)  Upon  which  there  may  be  as  it  appears  a  "  scire  facias  against  the  security 
for  costs  on  th-e  recognisance,"  1763,  ch.  18,  s.  89  ;  or  an  attachment  as  at  common 
law,  2  Harr.  Ent.  617. 


•^Wfc 


566  BILLINGSLEA  v.  GILBERT. 


BILLINGSLEA  v.  GILBERT. 

The  penalty  of  an  injunction  bond  to  stay  proceedings  at  law  should  be  at  least 

double  the  amount  of  the  debt  and  interest  then  due. 
An  answer  to  a  bill  in  chancery  may,  by  consent,  be  received  without  oath. 
On  its  being  shewn,  that  the  dissolution  of  an  injunction  has  been  irregularly  and 

improperly  obtained  it  may  be  revived. 

It  appears  that  the  late  William  Billivgslea,  on  the  9th  March 
1821,  filed  his  bill  here  praying  for  an  injunction  to  stay  proceed- 
ings at  law  instituted  against  him  by  Jarvis  Gilbert ;  and  in  the 
same  month  Billingsha  filed  a  supplemental  bill  against  Gilbert,  in 
like  manner  praying  iox  an  injunction. 

19th  March,  1821. — Kilty,  Chancellor. — The  penalty  of  the 
injunction  bond,  2000  dollars,  is  not  sufficient.  It  should  be  double 
the  amount  of  the  debt  which  is  .£600  and  the  interest  thereon, 
excepting  what  has  been  paid. 


After  which  another  bond  was  filed  and  submitted. 

'Uh  April,  1821. — Kilty,  Chancellor. — The  penalty  of  the  injunc- 
tion bond  now  filed  is  still  insufficient.  The  interest  after  deduct- 
ing the  payments  made  is  nearly  1516  dollars.  The  penalty  should 
be  double  the  aggregate  of  principal  and  interest,  and  the  safest 
way  is  to  make  it  somewhat  more.  When  the  injunction  issues  it 
will  only  be  to  stay  the  execution,  and  not  to  prevent  the  having  a 
trial  or  obtaining  a  judgment. (a) 

(a)  Yance  v.  Short. — 1788. — Answer  filed  ;  rule  on  the  plaintiff  to  shew  cause 
on  the  first  day  of  July  next  why  he  should  not  give  better  security  to  prosecute  his 
injunction  with  effect.  Also  notice  of  motion  to  dissolve  the  injunction  next  court. — 
Chan.  Proc.  lib.  S.  H.  H.  Id.  B.fol.  354. 

Sweeny  v.  Rodgers. — 1790. — Rule  on  the  complainant  to  file  a  new  bond  with 
sufficient  surety  by  the  18th  of  October  next,  or  the  injunction  be  dissolved. — Chan. 
Proc.  lib.  S.  H.  H.  let.  C.fol.  400. 

Onion  v.  McComas. — MS.  1812. — Kilty,  Chancellor. — Where  the  surety  in  an 
injunction  bond  is,  or  has  become  insufficient,  as  being  an  infant  or  having  become 
insolvent,  the  court  will  order  new  security,  or  that  the  injunction  be  dissolved  ;  and, 
if  the  court  has  been  imposed  on,  no  time  will  be  allowed  to  give  new  security.  Such 
matter  may  be  enquired  into  by  allowing  testimony  to  be  taken,  and  appointing  a 
day  for  hearing. 

Whitney  v.  Muschet,  MS.  1808.— Kilty,  Chancellor.— An  injunction  bond  to 
stay  proceedings  at  law  should  state  the  term  at  which  the  judgment  was  obtained. 

CouNSELMANV.  Gaither,  MS.  1810.— KiLTY,  CAanccZ/or.- Ordered  that,  instead 
of  an  injunction  bond,  on  the  money  appearing  to  be  due  by  the  execution  issued, 
being  paid  to  the  register,  which  he  is  directed  to  receive  and  deposit  in  the  usual 
manner,  an  injunction  be  issued  as  prayed. 


BILLING8LEA  v.  GILBERT.  557 

After  which  a  proper  and  sufficient  bond  having  been  filed 
and  approved,  an  injunction  was  granted  as  prayed,  and  issued 
accordingly. 

The  defendant  Gilbert  sent  a  paper  purporting  to  be  his  answer 
by  mail  directed  to  the  Chancellor ;  which,  although  not  sworn  to, 
was  filed,  on  the  28th  of  December  1824,  as  the  defendant's 
answer.  In  the  month  of  JNIarch  1825  the  plaintiff  Billingslea 
Avas  taken  with  a  severe  illness,  and  his  health  continued  from  that 
time  to  be  very  bad,  he  being  often  confined  to  his  bed,  and  his 
mind  becoming  very  much  impaired,  until  the  follow'ing  month  of 
December,  when  he  died.  At  the  July  term  of  the  year  1825,  the 
defendant  entered  upon  the  docket  notice  of  a  motion  to  dissolve 
the  injunction  at  the  next  term,  unless' cause  shewn  ;  and  accord- 
ingly, after  the  fourth  day  of  the  then  next  succeeding  term,  no  one 
appearing  to  shew  cause,  it  was  dissolved  under  the  rule.  After 
which,  on  the  10th  of  July  1827,  it  appears  by  an  entry  on  the 
docket,  that  the  suit  was  dismissed  by  order  of  the  complainant's 
solicitor.  On  the  7th  of  April  1829  Elizabeth  Billingslea,  as  admin- 
istratrix of  the  late  plaintiff,  filed  her  petition,  on  oath,  stating  these 
circumstances,  and  averring,  that  the  dissolution  of  the  injunction 
had  been  obtained  by  fraudulent  practices,  and  praying  that  it  and 
the  suit  might  be  reinstated ;  and  for  general  relief. 

1th  April,  1829. — Bland,  Chancellor. — Ordered,  that  the  mat- 
ter of  this  petition  stand  for  hearing  on  the  24th  instant ;  and  that 
the  parties  be  permitted  to  take  testimony  before  any  justice  of  the 
peace  to  be  read  at  the  hearing  on  giving  two  days'  notice  as 
usual ;  and  it  is  further  ordered,  that  the  injunction  in  the  petition 
mentioned  be  and  the  same  is  hereby  revived  until  the  said  hearing 
or  further  order.  Provided,  that  a  copy  of  this  order,  together 
with  a  copy  of  the  petition  be  served  on  Jan>is  Gilbert  on  or 
before  the  fourteenth  instant. 


After  which  the  case  was  again  brous^ht  before  the  court. 

21th  April,  1829. — Bland,  Chancellor. — The  matter  of  the  peti- 
tion of  Elizabeth  Billingslea  standing  ready  for  hearing,  and  the 
solicitors  of  the  parties  having  been  fully  heard,  the  proceedings 
were  read  and  considered. 

There  can  be  no  doubt,  that  the  answer  of  a  defendant  may  be 
received  by  consent  without  oath.  It  is  every  day's  practice  to  do 
so :  but  the  consent  of  the  plaintiff  must  be  expressly  given  in 


568  BILLINGSLEA  v.  GILBERT. 

writing  by  himself  or  his  solicitor ;  or  it  must  be  shewn  as  a  neces- 
sary inference  from  some  act  of  his  which  clearly  implies,  that 
he  knew  a  paper  purporting  to  be  an  answer,  not  sworn  to,  had 
been  filed.  As  in  this  case,  if  the  plaintiff  had  appeared  on  the 
notice  of  motion  to  dissolve  the  injunction  and  opposed  it,  without 
objecting  to  the  answer  on  account  of  its  not  having  been  sworn 
to,  he  would  have  been  precluded  from  making  such  an  objection 
at  any  time  thereafter;  because  of  the  manifest  waiver  of  his 
right  to  have  an  answer  on  oath.  But  this  defendant  did  not 
appear  in  opposition  to  the  motion  to  dissolve  the  injunction  ;  and 
it  has  not  been  shewn  that  he  ever,  either  expressly  or  impliedly, 
consented  to  receive  the  defendant's  answer  to  his  bill  without  its 
being  verified  by  an  oath. 

At  the  time  when  the  notice  of  the  motion  to  dissolve  the  injunc- 
tion was  entered  on  the  docket,  and,  from  that  time  until  it  was 
made  absolute,  it  appears,  that  the  plaintiff  was  in  a  state  of 
health,  which  rendered  it  at  least  doubtful,  whether  he  could  have 
bound  himself  by  any  consent  in  relation  to  this  suit;  or  have 
attended  to  it  with  that  judgment  and  discretion  which  men  usually 
pay,  and  ought  to  be  permitted  to  bestow  upon  their  own 
affairs. (a)  Therefore  upon  consideration  of  all  the  circumstances, 
I  am  of  opinion,  that  the  dissolution  of  the  injunction  was  irre- 
gularly and  improperly  obtained.  The  suit  having  abated  after 
that  time  by  the  death  of  the  plaintiff,  the  docket  entry,  that  it 
was  dismissed  by  order  of  the  complainant's  solicitor,  is  manifestly 
erroneous  ;  because  there  was  then,  in  fact,  no  such  suit  depending 
which  could  have  been  so  dismissed.  But,  even  if  there  had  been 
a  suit  depending,  a  general  dismissal,  without  saying  any  thing 
of  the  injunction,  would  not  have  amounted  to  a  dissolution  of  it; 
nor  would  the  death  of  either  party,  by  which  the  suit  became 
abated,  operate  as  a  dissolution  of  the  injunction. (6) 

Whereupon  it  is  ordered,  that  the  injunction  heretofore  granted 
be  and  the  same  is  hereby  revived  and  reestablished  in  full  force  until 
further  order.  And  the  defendant,  the  petitioner,  or  the  legal  rep- 
resentatives of  the  late  plaintiff  upon  whom  his  interest  in  the  suit 
has  devolved,  are  hereby  permitted,  without  prejudice  from  this  order 
or  any  proceedings  heretofore  had  in  this  suit,  either  to  revive  the 


(a)  Kemp  v.  Squire,  1  Ves.  206.— (6)  Griffith  r.  Bronaugh,  ante,  547. 


DUVALL  V.  WATERS.  559 

same,  or  to  have  the  injunction  properly  and  regularly  dissolved 
according  to  the  course  of  this  court. 


After  which  the  suit  was  regularly  revived  by  bill ;  and  the 
Case  was  referred  to  arbitrators,  who  returned  an  award,  upon 
which,  on  the  6th  of  August  1832,  a  final  decree  was  passed, 
which  closed  the  case. 


DUVALL  V.  WATERS. 


The  distinction  between  waste  and  trespass  as  regards  the  proceeding  by  injunction. 
The  preventive  and  corrective  common  law  remedy  for  waste.  The  writ  of  esirepe- 
mfnt  to  prevent  waste  associated  with  an  action  to  try  the  right. 

An  injunction  to  stay  waste  may  be  granted  in  a  variety  of  cases  in  which  an  action 
of  waste  will  not  lie.  And  the  court  will,  in  many  cases,  exercise  a  conservative 
power  over  propertj',  because  of  there  being  no  mode  of  obtaining  adequate  relief 
at  law . 

In  England,  if  the  injunction  bill  states  and  admits,  that  the  defendant  asserts  and 
relies  upon  what  he  alleges  to  be  a  valid  adverse  title  in  himself,  the  plaintiff 
thereby  states  himself  out  of  court ;  or  if  the  defendant  in  his  answer  positively 
denies  the  plaintiff's  tiUe,  tlie  injunction  will  be  refused,  or,  having  been  granted, 
will,  on  the  coming  in  of  such  an  answer,  be  dissolved. 

But  in  Maryland,  if  the  plaintiff,  by  his  bill  for  an  injunction,  can  and  does  put 
the  title  in  issue  here ;  or,  if  he  states,  that  he  has  actually  brought  an  action 
at  law  to  try  the  right,  he  may  have  an  injunction  to  stay  waste,  pending  the 
suit  here,  or  the  action  at  law ;  and,  such  injunction  will  not  be  dissolved  on 
the  coming  in  of  an  answer  which  denies  the  plaintiff's  right.  If  however,  after 
he  has  filed  such  a  bill  here  to  try  the  right,  he  wishes  to  obtain  an  injunction  to 
stay  waste,  he  sliould  apply  for  it  by  petition  in  the  same  case,  and  not  by  a  sepa- 
rate bill. 

An  injunction  to  stay  waste,  pending  a  suit,  does  not  restrain  the  defendant  from  cul- 
tivating, or  making  any  of  the  ordinary  uses  of  the  land. 

A  conveyance,  shewn  to  be  fraudulent,  declared  to  be  void  as  against  creditors. 

The  title  to  land  sold  under  a  fieri  facias  passes  by  the  sale  ;  but  (here  must  be  some 
written,  and  recorded  evidence  of  the  sale ;  such  as  a  return  to  the  execution  under 
which  Uie  sale  was  made. 

Where  lands  have  been  sold  under  a  fieri  facias,  the  sheriff  should,  in  his  return, 
sufficiently  describe  the  land  sold  by  him. 

This  bill  was  filed,  on  the  26th  of  February  1827,  by  Charles 
Davall,  against  jXathan  Waters,  jYuthan  I.  Waters,  and  Samuel 
RatcUjf.  It  alleged,  that  Samuel  Peach  had  obtained  a  judgment 
at  law  against  JVathan  Waters  upon  which  he  had  sued  out  a  Jieri 

72 


'570  DUVALL  V.  WATERS. 

facias,  by  which  the  hinds  in  question  were  taken  and  sold,  as 
the  property  of  the  defendant  JSathan  Waters ;  and  this  plaintiff 
became  the  purchaser ;  ^  that  Mathan  Waters  had,  with  intent 
to  defraud  his  creditors,  without  any  valuable  consideration,  pre- 
viously conveyed  those  lands  to  the  defendants  JYatJum  I.  Waters 
and  Samuel  liatdijf.  Whereupon  it  was  prayed,  that  the  convey- 
ance might  be  set  aside  as  fraudulent  and  void.  The  defendants 
put  in  their  answers  to  this^bill ;  and  commissions  were  issued  and 
testimony  collected.  All  the  material  particulars  of  this  case  are 
stated  by  the  Chancellor  in  delivering  his  opinion  on  pronouncing 
the  final  decree. 

On  the  18th  of  July  1827  this  plaintiff  filed  another  bill  here 
against  these  same,  defendants,  reciting  the  nature  and  pendency 
of  the  former  bill;  and  alleging,  that,  since  the  institution  of  that 
suit,  the  defendants  had  been  committing  great  waste,  by  cutting 
large  quantities  of  timber,  with  a  view  of  removing  it  from  the 
land ;  and  by  destroying  the  wood.  Whereupon  the  plaintiff 
prayed  for  an  injunction  commanding  the  defendants  not  to  commit 
farther  waste  by  cutting,  or  removing  from  the  lands  any  tim- 
ber ;  or  by  destroying  the  wood ;  and,  not  to  do  any  act  that 
might  be  in  any  wise  prejudicial  to  the  inheritance;  and  for 
general  relief.  Which  injunction  was  granted  as  prayed.  The 
defendants  put  in  an  answer  to  this  bill,  in  which  they  averred, 
that  the  conveyance  was  made  for  a  good  and  valuable  considera- 
tion ;  and  in  short  denied  the  plaintiff's  title,  and  all  the  material 
facts  upon  which  his  equity  rested  ;  and  thereupon  gave  notice  of 
a  motion  to  dissolve. 

1st  October,  1827. — Bland,  Chancellor. — The  motion  to  dissolve 
the  injunction  standing  ready  for  hearing,  the  solicitors  of  the  par- 
ties were  heard  and  the  proceedings  read  and  considered. 

It  has  been  urged,  in  support  of  this  motion,  that  this  was  not 
merely  and  properfy  a  case  oi  waste,  but  an  injunction,  in  restraint 
of  trespass,  granted  at  the  instance  of  a  plaintiff  who  claimed  title  ; 
which  title  had  been  directly  and  positively  denied  by  the  defend- 
ants. And  that  according  to  the  well  established  law  of  this  court, 
as  deduced  from  the  English  authorities,  no  such  injunction  could 
be  granted  or  continued  where  the  title  of  the  plaintiff,  as  in  this 
instance,  was  admitted  to  be  in  dispute,  or  was  altogether  denied 
by  the  defendant  in  his  answer.  This  objection  is  certainly  well 
founded  upon  the  principles  of  the  English  law  ;  but  it  is  otherwise 
according  to  the  law  of  Maryland.. 


DUVALL  V.  WATERS.  571 

This  is  the  first  instance,  since  I  have  been  here,  in  which  the 
correctness  of  this  peculiar  species  of  injunction  has  been  called  in 
question  ;  and  as  its  origin  and  nature  seem  to  have  fallen  into 
some  degree  of  obscurity ;  it  may  be  well  to  take  a  larger  view  of 
the  subject  than  might  otherwise  be  deemed  necessary. 

The  terms  waste  and  trespass  are  very  often  used  to  designate 
injuries  to  property  of  the  identical  same  nature.  The  cutting 
of  a  timber  tree,  or  the  pulling  down  of  a  house,  may  be  an 
act  entirely  lawful ;  or  it  may  be  an  act  of  waste,  or  of  trespass  ; 
and,  that  not  because  of  any  peculiarity  in  the  act  itself;  but, 
because  of  the  party,  by  whom  it  may  have  been  done,  having  an 
absolute  title,  a  limited  estate,  or  no  right  whatever.  The  absolute 
owner  of  an  estate  in  fee  simple,  without  any  incumbrance,  or 
charge  upon  it,  has  an  uncontrollable  power  to  dispose  of  it  as  he 
may  think  proper ;  and  can  be,  in  no  way,  held  accountable,  as  a 
waster  or  trespasser,  for  any  thing  he  may  do  with  the  trees, 
houses,  or  soil  of  his  lands.  If  he  who  does  such  an  act  has  only 
a  particular  estate,  as  a  tenancy  for  life  or  years,  it  is  properly 
denominated  loaste  ;  but,  if  he  has  no  right  whatever,  it  is  then 
said  to  be  a  trespass.  In  general,  when  any  permanent  or  lasting 
injury  is  done,  by  the  holder  of  the  particular  estate,  to  the  inherit- 
ance, or  to  the  prejudice  of  any  one  who  has  an  interest  in  Ihe  inhe- 
ritance, it  is  properly  called  waste;  as  where  timber  trees  are 
felled,  or  houses  are  destroyed  by  a  tenant  for  life  or  years  ;  or  by 
a  mortgagor  or  mortgagee  in  possession  ;  or  by  a  tenant  in  fee 
simple,  where  the  State  has  reserved  to  itself  an  interest  in  the 
trees,  &c.  for  the  use  of  the  public. («) 


(«)  Although  in  Ens:land  the  cuttins;  of  timber,  by  a  tenant  in  fee  simple,  cannot 
be  deemed  waste ;  yet  if  the  public  has  an  interest  in  the  forest  trees,  or  they  are 
reserved  tor  public  use,  as  for  ship  building,  or  tlie  ILlce,  it  is  then  held  to  be  waste  to 
fell  such  trees  ;  and  the  tenant  in  fee  simple,  may  be  restrained  from  cutting  them 
by  injunction. — Jacob  L.  Did.  verb.  Wasfe. — BMop  of  Winchester  v.  TVoIgnr,  3  Sican. 
493,  note.  By  a  clause  in  the  colonial  charter  of  Massachusetts ;  and,  by  seve- 
ral acts  of  parliament,  all  lehite  pine  trees  of  tWe  diameter  of  twenty-four  inches 
and  upw^ards,  of  twelve  inches  from  the  ground,  growing  in  Maine,  New  Hampshire, 
Rhode  Island,  Connecticut,  New  York,  and  New  Jersey,  were,  under  the  colonial 
government,  reserved  to  the  use  of  the  crown  fof  masting  the  ro3'al  navy.  This  white 
pine,  the  ancient  and  majestic  inliabitant  of  the  North  A.merican  forest,  says 
Michaux,  is  still  the  loftiest  and  most  valuable  of  their  productions,  and  its  summit 
is  seen  at  an  immense,  distance  aspiring  towards  heaven,  in  some  instances  to  tho 
height  of  one  hundred  and  eighty  feet  from  the  ground,  and  far  above  the  beads  of 
^he  surrounding  ti'ees.    The  felling  of  any  of  these  w-hitc  pines  was  prohibited  by  a 


572  DUVALL  V.  WATERS. 

In  general  waste  is  the  abuse,  or  destructive  use  of  property  by 
him  who  has  not  an  absolute  unqualified  title.  And  in  general 
trespass  is  an  injury,  or  use,  without  authority,  of  the  property  of 
another,  by  one  who  has  no  right  whatever. 

At  common  law,  if  the  owner"  of  the  inheritance  had  good  rea- 
son to  believe,  that  a  tenant  in  dower,  or  by  the  courtesy,  or  a 
guardian  designed  to  commit  waste,  he  might,  before  any  waste  was 
done,  have  a  ijrohihition  directed  to  the  sheriff,  commanding  him  to 
prevent  it  from  being  done  ;  and  in  execution  of  this  writ  of  pro- 
hibition,  the  sheriff  might,  if  necessaiy,  call  to  his  aid  the  posse 
comitatus.  This  writ  was  extended,  by  a  statute  passed  in  the 
year  1267,  to  tenants  for  life  and  for  years :  and  afterwards,  in 
12S5,  it  was  taken  away,  and  another  form  of  w^it  given  in  its 
place  ;  but  when  the  court  of  chancery  first  granted  injunctions,  it 
seems  to  have  taken  its  jurisdiction  from  this  writ  of  prohibition 
of  waste. (6) 

After  waste  had  been  actually  committed,  the  ancient  corrective 
remedy,  in  a  court  of  common  law,  was  by  a  writ  of  waste,  for  the 
recovery  of  the  place  w^asted  and  treble  damages,  as  a  compensa- 
tion for  the  injury  done  to  the  inheritance. (c)  There  were,  how- 
ever, several  cases  to  v/hich  the  writ  of  waste  did  not  extend  ;  and 
as  to  such  cases,  the  party  was  left  w^ithout  any  remedy  at  common 
law.  The  action  of  waste  could  only  have  been  brought  by  him 
who  had  the  immediate  reversion  or  remainder,  to  the  disinherit- 
ance of  whom  the  waste  was  always  alleged  to  have  been  com- 
mitted;  and  therefore,  if  a  lease  had  been^made  to  A  for  life  or 
years,  remainder  to  B  for  life  ;  and  A  committed  waste,  the  action 
could  not  be  brought  by  him,  in  reversion  or  remainder,  so  long  as 

heavy  penalty,  made  recoverable  in  the  colonial  courts  of  Vice  Admiralty,  without  a 
trial  by  jury.  The  claims  of  right  to  these  trees,  and  the  execution  of  the  laws  for 
their  preservation,  produced  much  imtation  among  the  colonists  ;  insomuch  so,  that 
the  controversies  respecting  them,  in  those  colonies  to  which  the  statutory  prohibition 
of  felling  them  extended,  maybe  considered  as  some  among  the  minor  causes  of  the 
revolution.— 9  Jlnne,  c.  17;  8  Geo.  1,  c.  12;  2  Geo.  2.  c.  .3.5;  1  Chal.  Opin.  Em. 
Lmv,  111,  116,  Hi),  137 ;  2  Hutch.  His.  Mans.  228 ;  2  Belk.  N.  Hamp.  28,  89,  128 ; 
Michmtx's  Sylva,  art.  Wliile  Pi«e.— Since  the  revolution  Congress  have  deemed  it 
expedient  to  make  similar  resen'ations  of  tlie  Live  Oak,  and  Red  Cedar,  growing  on 
the  public  lands,  for  the  use  of  the  \m\y.—\st  March,  1817,  ch.  22 ;  2d  March,  1831, 
eh.  6.3. 

(6)  Co.  Litt.  53;  2  Inst.  299,  3S9  ;  52  Hen.  3,  c.  23  ;  13  Edw.  1,  c.  14;  Kilt. 
Rop.  209,  212 ;  Jefferson  v.  Bishop  of  Durham,  1  Bos.  &.  Pul.  108,  121 ;  Goodcson 
V.  Gallatin,  Dick.  455.— (c)  Co.  Litt.  53;  2  Inst.  300. 


DUVALL  V.  WATERS.  573 

the  life  estate  of  B  continued.  But  the  inten*ening  life  estate  only 
suspended  the  remedy  ;  for,  after  its  termination,  the  reversioner, 
or  remainderman  might  then  bring  his  action  against  A  for  the 
waste  done  before  that  time.((^)  Nor  could  any  one  maintain  this 
action  unless  he  had  the  estate  of  inheritance  in  him  at  the  time 
the  waste  was  committed  ;  nor  could  it  be  sustained  against  an 
executor,  for  waste  committed  by  his  testator,  it  being  a  wrong 
which  died  with  the  person  ;  nor  could  one  coparcener  bring  an 
action  of  waste  against  another ;  although  one  joint  tenant  or  tenant 
in  common  might  have  a  writ  of  waste  against  his  cotenant,  com- 
pelling him  either  to  make  partition,  and  take  the  place  wasted  as 
his  own  share,  or  to  give  security  not  to  commit  any  further  waste. (e) 
At  the  common  law  there  was  no  process  by  which  a  threatened 
trespass  upon  a  real  estate,  however  great  or  irreparable,  could  be 
prevented.  After  the  act  was  done  the  injured  owner  might  bring 
his  action  of  trespass  against  the  wrongdoer,  and  recover  satisfac- 
tion in  damages  ;  but,  the  common  law  gave  him  no  means  of  pre- 
venting the  execution  of  the  designs  and  threats  of  any  one,  whose 
declared  and  settled  purpose  was  to  commit  a  trespass  upon  his 
lands.  If  however  the  claimant  was  not  in  possession,  and  he 
thought  proper  to  bring  an  action  to  establish  his  right,  and  recover 
the  estate  ;  then,  and  in  aid  of  such  suit,  and  to  prevent  any  injury 
from  being  done  to  the  property,  pending  the  controversy,  the 
common  law  gave  the  writ  of  estrepcment.{f)  It  would  seem, 
that  originally  this  writ  could  only  be  used  as  an  aid  to  a  real  action 
for  the  recovery  of  the  land  itself;  but,  its  scope  having  been 
extended  by  statute,  it  was  afterwards  used  in  connexion  with 
actions  in  which  no  land  was  demanded,  as  in  actions  of  waste, 
trespass,  &c.  It  was  not,  however,  allowed  to  be  associated  with 
a  suit  for  partition  ;  because  the  tenants,  being  both  of  them  in 
possession,  there  was  no  reason  why  one  should  be  restrained  and 
not  the  other.  A  writ  of  estrepement  might  be  sued  out  at  the 
same  time,  and  together  with  the  original  writ,  commencing  the 
action  ;  and  that  too,  in  those  cases  where  damages  for  waste  done, 
pending  the  action,  might  be  recovered ;  because  it  was  injurious 
to  the  commonwealth  that  waste  should  be  done,  and  peradvcnture 
he  who  committed  it  might  not  be  able  to  satisfy  the  plaintiff  his 
full  damages. (^) 

(d)  Co.  Litt.  53  ;    Clifton's  Case,  5  Co.  76.— (e)  2  Inst.  302,  .305,  403  ;  3  Blac. 
Com.  227.— (/)  Jacob.  L.  Die.  verb.  Estrepement.— (g)  2  Inst.  328. 


574  DUVALL  v.  WATERS. 

The  writ  of  estrepement  is  certainly  a  preventive  remedy,  and  so 
far  it  is  analogous  to  a  writ  of  irrohibition,  by  which  a  tenant  in 
dower,  or  by  the  courtesy  might  be  prevented  from  doing  waste. 
But  it  is  more ;  it  is  also  a  remedial  and  corrective  remedy ; 
because,  the  holder  of  land  may  not  only  be  prevented  from  doing 
waste ;  but  if  he  should  do  any  notwithstanding  the  prohibition, 
the  plaintiff  may  recover  damages  for  such  waste,  even  up  to  the 
time  when  possession  shall  be  delivered  to  him.  This  writ  has 
some  other  peculiar  traits  of  character.  It  can  never  be  brought 
into  action  independently  and  alone  ;  it  must  always  be  associated 
with  another  as  its  leader ;  to  which  it  acts  as  an  auxiliary,  whose 
fortunes  it  must  follow,  and  to  whose  final  fate  it  must  submit.  If 
it  emanates,  as  it  may,  at  the  same  time  and  together  with  its 
chief,  from  the  chancery  office,  it  is  then  called  an  original ;  but  if 
it  be  awarded  by  the  court,  in  which  the  action  is  depending,  as  it 
may,  it  is  then  called  a  judicial  writ  of  estrepement.  This  writ, 
as  its  very  name  distinctly  imports,  is  ahvays  intended  to  stay 
waste.  It  is  no  where  spoken  of  as  a  means  by  which  a  mere  tres- 
pass may  be  prevented ;  in  all  its  modifications,  it  is  continually 
treated  as  a  remedy  against  waste. {h)  But  in  a  writ  of  right,  and 
in  all  the  other  actions,  except  a  writ  of  waste,  to  which  an  estrepe- 
ment is  called  in  as  an  auxiliary,  there  is  not  any  privity  of  title 
Avhatever  between  the  parties  to  the  suit ;  all  such  privity  being 
expressly  disavowed.  The  plaintiff  asserts,  and  calls  for  the  vin- 
dication of  his  absolute  title  against  an  unqualified  wrongdoer, 
who  he  complains  of  as  a  disseizor,  ejector,  or  trespasser.  And, 
therefore,  in  all  such  cases,  the  injury  which  it  is  the  oflace  of  the 
writ  of  estrepement  to  prevent,  is  not  properly  waste,  founded  on 
privity  of  title,  as  between  a  reversioner  and  a  particular  tenant ; 
but  literally  a  trespass,  in  the  chancery  acceptation  of  that  term ; 
and  not  a  mere  abusive  use  of  that  which  a  lawful  holder  had  a 
right  to  enjoy. 

Where  the  title  and  the  rights  of  the  parties  are  admitted,  there 
can  be  no  mistake ;  and  therefore,  there  should  be  no  confusion  or 
misapplication  of  these  terms  waste  and  trespass.  But,  in  the 
English  authorities,  there  is  not  the  same  distinctness,  in  the  appli- 
cation of  them,  to  any  such  injuries  to  the  inheritance,  where  the 
rights  of  the  parties  are  disputed  and  put  in  litigation.  If  the  party 
asserts  his  title  to  an  estate,  by  an  action  at  law,  such  acts,  with 

{h)  F.  N.  B.  139;  2  Inst.  32S  ;  3  Blac.  Com.  223;  Jacob.  L.  Die.  verb.  Estrepe- 
ment. 


I 


DUVALL  V.  WATERS.  575 

reference  to  a  presumption  in  favour  of  the  validity  of  Iiis  title  pend- 
ing the  suit,  are  said  to  be  waste  ;  but  if  he  asks,  in  a  court  of 
chancery,  to  have  the  doing  of  such  acts  prevented  by  an  injunc- 
tion, they  are  denominated  trespasses. {i)  This  difference  in  cha- 
racterizing the  same  injurious  acts,  when  proposed  to  be  prohibited 
by  an  estrepement,  as  waste  ;  and  when  proposed  to  be  restrained 
by  injunction  as  trespass,  has  been  attended  with  some  confusion. 
And  therefore  in  relation  to  the  peculiar  species  of  injunctions,  now 
under  consideration,  all  such  acts  as  would  be  deemed  waste,  when 
done  by  an  admitted  particular  tenant,  if  done  after  the  institution 
of  any  suit  involving  the  title,  or  of  a  suit  for  partition,  it  may  be 
well  to  denominate  eventual  waste. 

The  judicial  records  of  the  State,  and  the  acts  of  Assembly 
reo;ulatino^  officers'  fees  shew,  that  the  writ  of  waste  as  well  as  the 
writ  of  estrepement  were  at  one  time  in  common  use  in  Mary- 
land.(j)  But  here,  as  in  England,  these  writs  have  fallen  into 
disuse,  and  are  now  seldom,  or  never  brought,  having  given  way  to 
the  more  easy  and  expeditious  remedy  by  an  action  upon  the  case 
in  nature  of  waste  at  common  law  ;  by  which  the  plaintiff  obtains 
satisfaction  for  the  injury  done  to  his  inheritance  by  a  recovery  of 
damages  alone  ',{k)  and  in  Maryland  to  an  injunction  from  chancery 
which  performs  the  office  of  a  writ  of  estrepement. 

The  whole  subject  of  waste,  in  Maryland,  seems  to  have  passed, 
almost  altogether,  firom  the  cognizance  of  the  courts  of  common 
law  to  that  of  the  court  of  chancery ;  and  the  shifting  of  this  mat- 
ter so  entirely,  from  the  one  jurisdiction  to  the  other,  may  be  attri- 
buted to  the  nature  of  the  injury  requiring  redress  ;  to  the  different 
constitutions  of  the  tribunals  ;  and  to  their  peculiar  modes  of  pro- 
ceeding. Waste  is  a  wrong  which  cannot  always  be  duly  esti- 
mated and  remunerated  in  damages  ;  it  is  an  injury  which  requires 
to  be  met,  in  its  onset,  or  earliest  approaches,  by  a  strong  and 
decisive  preventive  remedy,  acting  with  a  promptness  almost 
amounting  to  surprise ;  and  yet  affording  to  the  party  restrained 
a  speedy  hearing.  No  adequate  remedy  of  this  kind,  it  is  evi- 
dent, can  be  obtained  from  a  court  of  common  law,  open  only 
at  short  intervals  during  the  year ;  acting  from  term  to  term ;  and 

(i)  Eden.  Inj.  136 ;  Mitchell  v.  Dors,  6  Ves.  147 ;  Crockford  v.  Alexander, 
1.5  Ves.  13S;  Mogg  i-.  Mogg,  Dick.  670.— C^')  2  Harr.  Ent.  149,800;  Adams  v. 
Brereton,  3  H.  &  J.  124  ;  1763,  ch.  IS,  s.  89  &  94  ;  1779,  ch.  25,  s.  2.—{k)  3  Blac. 
Com.  227 ;  Greene  v.  Cole,  2  Saund.  252,  note  7 ;  AVhite  v.  Wagner,  4  H.  &  J.  373 ; 
McLaughlin  v.  Long,  5  H.  &  J.  113. 


576  DUVALL  V.  WATERS. 

limited  to  a  given  set  of  technical  forms  of  proceeding.  Hence  it 
is,  that  the  remedy  has  been  so  constantly,  in  modern  times,  sought 
in  the  court  of  chancer}^,  which  is  always  open,  constantly  accessi- 
ble, and  is  capable  of  moving  with  an  energy  and  despatch  called 
for  by  the  emergency,  and  suited  to  the  peculiar  nature  of  the 
case. 

In  general  an  injunction  may  be  obtained,  in  this  State  as  in 
England,  to  stay  waste  in  all  cases  where  an  action  of  waste  would 
lie  at  common  law,  whether  there  be  any  privity  of  title  or  not ;(/) 
and  in  a  variety  of  others  in  which  no  such  action  could  be  brought, 
even  where  there  was  a  subsisting  privity  of  title  or  contract 
between  the  parties.  A  mere  threat  to  commit  waste  is  a  sufficient 
foundation  for  an  injunction  before  any  waste  has  been  actually 
done.(m)  And  an  injunction  may  be  granted  where  no  account 
of  damages  could  be  claimed  ;  or  where  the  waste  done  is  so  insig- 
nificant that  there  could  be  no  recovery  of  damages  at  law.(?i.)  It 
maybe  granted  in  favour  of  a  child  en  ventre  samere  ;(o)  in  favour 
of  trustees  to  preserve  a  contingent  remainder,  before  the  contin- 
gent remainderman  has  come  in  esse  ;{p)  in  favour  of  any  one 
entitled  to  a  contingent  or  executory  estate  of  inheritance; (9)  and 
in  favour  of  a  remainderman  or  reversioner,  where  there  is  an 
intervening  estate  for  life.(r)  An  injunction  may  be  obtained,  in 
respect  of  equitable  waste,  against  a  tenant  in  tail  after  possibility 
of  issue  extinct  ;(s)  against  a  tenant  for  life  without  impeachment  of 
waste  •,{t)  and  against  a  mortgagor  or  mortgagee  in  possession. (m) 
An  injunction  may  be  granted  as  between  tenants  in  common, 
joint  tenants,  and  coparceners,  against  malicious  destruction,  or 
when  the  tenant  committing  the  waste  is  insolvent,  or  is  occupy- 
ing tenant  to  the  plaintiff. (y)  And  so  too,  where  some  of  the 
heirs  had  filed  their  bill  in  this  court  against  the  rest  to  obtain  a 
partition  according  to  the  act  to  direct  descents,  and  one  of  the 
heirs,  who  was  in  possession,  wms  committing  waste ;    upon  a 

(I)  The  Mayor  &,  Com.  Norwich  v.  Johnson,  3  Mod.  90 ;  S.  C.  2  Show.  457. 
(m)  Gibson  v.  Smith,  2  Atk.  183 ;  Hannay  v.  MicEntire,  11  Ves.  54;  Coffin  v.  Cof- 
fin, Jacob.  70. — (n)  The  Universities  of  Ox.  &.  Cam. f.  Richardson,  6  Ves.  706  ;  The 
Keepers,  &.c.  of  Harrow  School  v.  Alderton,  2  Bos.  &  Pul.  86. — (0)  Robinson  v. 
Litton,  3  Atk.  211.— (;))  Garth  v.  Cotton,  3  Atk.  754.— (9)  Bewick  v.  Whitfield, 
3  P.  Will.  268,  note ;  Haywaid  v.  Stiilingfleet,  1  Atk.  422.— (?)  Bewick  v.  Whit- 
field, 3  P.  Will.  268,  note;  Farrant  v.  Lovel,  3  Atk.  723.— (s)   Abraham  v.  Bubb, 

2  Freem.  53.— (/)  Lord  Bernard's  Case,  Prec.  Chan.  454.— (w)  Faitant  v.  Lovel, 

3  Atk.  723  ;  Humphreys  v.  Harrisoji,  1  Jac.  8c  AValk.  5G1.— (r)  Smallman  v.  Onions, 
3  Bro.  C.  C.  621 ;  Hole  v.  Thomas,  7  Ves.  589  ;  Twort  i'.  Twort,  16  Ves.  12S. 


DUVALL  V.  WATERS.  577 

representation  of  the  fact,  by  the  trustee  appointed  to  make 
sale  of  the  lands  for  the  purpose  of  effecting  a  partition,  he  was 
restrained  by  injunction. (w?)  When  the  bill  is  for  an  injunction  to 
stay  further  waste,  and  waste  has  been  already  committed,  the 
court,  to  prevent  a  double  suit,  will  decree  an  account  and  satis- 
faction for  what  is  past,  and  not  oblige  the  plaintiff  to  bring  an 
action  at  law  as  well  as  a  bill  in  equity ;  but  such  decree  for 
the  past  is  only  given  as  an  incident  to  the  injunction,  to  obtain 
which  the  plaintiff  was  under  a  necessity  of  coming  into  chan- 
cery- :  and,  consequently,  it  may  be  regarded  as  a  general  rule,  to 
which  there  are  few  exceptions,  that  when  no  injunction  is,  or  can 
be  asked  for  or  granted,  a  bill  to  have  an  account  of  past  waste, 
and  nothing  more,  cannot  be  sustained,  the  proper  remedy  being 
at  law.  (2:) 

It  appears,  that  the  English  Court  of  Chancer}'  had  steadily 
confined  itself  in  granting  relief  against  waste,  to  those  cases 
only  where  there  was  some  subsisting  privity  of  title  or  contract 
between  the  parties,  until  about  the  year  1785 ;  since  which  time  it 
has  gone  one  step  further,  and  granted  injunctions  against  strangers 
to  stay  trespass,  in  strong  cases  of  destruction  or  irreparable  mis- 
chief; or  where  the  irreparable  mischief  might  be  completely 
effected  before  any  trial  could  be  had  as  to  the  controverted  right. 
But,  at  that  point,  it  seems  to  have  come  to  a  stand ;  not,  however, 
without  expressing  a  regret,  that  its  jurisdiction  had  not  been 
extended  so  far  as  to  protect  real  estate  from  waste  and  injury 
pending  a  controversy  about  the  title.  I  have  seen  no  reason  to 
doubt,  that  the  powers  of  this  court  in  granting  injunctions  have 
been  always  considered  as  in  all  respects  coextensive  with  those 
of  the  chancery  court  of  Eiigland.[y) 

It  appears  to  be  even  yet  the  fixed  rule  of  the  Court  of  Chan- 
cery o{ England,  that  the  granting  of  an  injunction  to  stay  waste 
must  depend,  either  upon  the  fact  of  there  being  a  privity  of  title 
or  contract  acknovvdedged  by  the  answer  ;  or  an  unquestionable 
legal  or  equitable  title  in  the  plaintiff;  as  where  a  purchaser  fdes 
a  bill  for  specific  performance  of  his  contract,  suggesting,  that  the 
defendant  was  proceeding  to  cut  timber  &c.,  an  injunction  may  be 

{w)  Claxke  v.  Clarke,  MS.,  24th  Januar\'  1322. — (x)  Jesus  College  v.  Bloom, 
3  Atk.  262  ;  Eden.  Inj.  146.— (y)  Pillsworth  v.  Hopton,  6  Ves.  51 ;  Mitchell  v.  Dors, 
G  Ves.  147  ;  Hanson  v.  Gardiner,  7  Ves.  305  ;  Smith  v.  Collyer,  8  Ves.  S9 ;  Courthope 
V.  Mapplesden,  10  Ves.  290 ;  Crockford  v.  Alexander,  15  Ves.  138  ;  Norway  v.  Rowe, 
19  Ves.  147  ;  Jones  v.  Jones,  3  Meriv.  173. 

73 


578  DUVALL  V.  WATERS. 

granted  if  the  contract  be  slated  and  admitted.  For  if  the  bil] 
states  and  admits,  that  the  defendant  asserts  and  relies  upon  what 
he  alleges  to  be  a  valid  adverse  title  in  himself,  the  plaintiff  thereby 
states  himself  out  of  court,  or  if  the  defendant  in  his  answer  posi- 
tively denies  the  plaintifTs  title,  the  injunction  will  be  refused ;  or 
having  been  granted  will,  on  the  coming  in  of  such  an  answer,  be 
dissolved,  (c) 

It  is  said,  however,  in  one  of  the  most  respectable  treatises  on 
pleadings  in  chancery,  that,  "  pending  an  ejectment  in  a  court  of 
common  law,  a  court  of  equity  will  restrain  the  tenant  in  posses- 
sion from  committing  waste,  by  felling  timber,  ploughing  ancient 
meadow,  or  otherwise.  Against  this  inconvenience  a  remedy  at 
the  common  law  was  in  many  cases  provided  during  the  pendency 
of  a  real  action,  by  the  writ  of  estrepement ;  and  when  the  proceed- 
ing by  ejectment  became  the  usual  mode  of  trjdng  a  title  to  land, 
as  the  writ  of  estrepement  did  not  apply  to  the  case,  the  courts  of 
equity,  proceeding  on  the  same  principles,  supplied  the  defect."(cr) 
But  the  only  authorities  cited  in  support  of  what  is  here  said  are 
cases  between  landlord  and  tenant,  where  the  title  of  the  plaintiff 
had  not  been,  and  could  not  be  denied  by  the  defendant  who  con- 
fessedly held  only  as  tenant.  (6)  Whence  it  is  evident,  that  there 
can  be  no  means  of  preventing  waste  from  being  done  upon  real 
estatCj  in  England,  pending  a  suit  to  determine  the  title,  other 
than  the  writ  of  estrepement ;  and  that  writ,  it  is  said,  has  fallen 
into  disuse,  (c) 

But  in  a  variety  of  other  cases  the  English  Court  of  Chancery 
is  in  the  habit  of  exercising  its  preventive  and  conservative  powers 
for  the  express  purpose  of  preserving  the  subject  of  litigation  from 
waste,  injury,  or  total  loss,  pending  the  controversy. 

In  cases  of  patent  rights,  where  the  plaintiff  is  in  possession  of 
the  invention,  under  colour  of  title,  an  injunction  may  be  granted 
pending  the  proceedings  at  law  to  try  the  right.  ((/)  And  so,  too, 
where  the  plaintiff  claims  the  copy-right  of  a  book,  an  "injunction 
may  be  granted  to  prevent  publication,  during  the  continuance  of 
a  suit  at  law.  In  cases  of  copy-right  the  jurisdiction  is  assumed 
merely  for  the  purpose  of  making  the  legal  right  effectual,  which 

{:)  Pillsworth  v.  Hopton,  6  Ves.  51;  Smith  v.  Collycr,  S  Ves.  89;  Norway  ». 
Rowe,  19  Ves.  147.— (a)  Mitf.  Plea.  136.— (6)  Lathropp  v.  Marsh,  5  Ves.  259 ; 

Pulteney  v.  Shelton,  5  Ves.  260,  note;  Onslow  v. ,  16  Ves.  173.— (c)  3  Blac. 

Com.  227;  Calvert  v.  Gason,  2  Scho.  &,  Lefr.  561.— {d)  The  Universities  of  Ox. 
&  Cam.  0.  Richardson,  6  Ves.  689. 


DUVALL  1-.  WATERS.  579 

cannot  be  done  by  any  action  for  damages,  because,  if  the  work  is 
pirated,  it  is  impossible  to  lay  before  a  jury  the  whole  evidence  as 
to  all  the  publications,  which  go  out  to  the  world,  to  the  plaintiff's 
prejudice  ;  and  therefore^  with  a  view  to  make  the  legal  tight 
effectual,  the  publication  will  be  altogether  prohibited.  "Where 
a^ir  doubt  appears,  as  to  the  plaintiff's  legal  right,  the  court 
always  directs  it  to  be  tried  ;  making  some  provision  in  the  inte- 
rim, the  best  that  can  be,  for  the  benefit  of  both  parties. (e)  And 
on  a  proper  case  being  presented  the  court  will  grant  an  injunction, 
and  appoint  a  receiver  to  preserve  personal  property  while  a  suit  is 
depending  in  the  ecclesiastical  court,  although  an  administration 
pendente  lite  might  be  there  obtained. (/")  In  general,  where  per- 
sonal property,  or ,  the  rents  and  profits  of  real  estate  in  dispute, 
are  in  imminent  danger  of  being  wasted  or  lost,  a  receiver  may  be 
appointed  to  take  care  of  it,  for  the  benefit  of  all  concerned,  pend- 
ing the  controversy.  (^)  To  accelerate  the  progress  of  the  suit, 
as  well  as  for  the  greater  security  of  the  fund,  for  the  benefit 
of  those  who  may  ultimately  appear  to  be  entitled  to  it,  money  may 
be  ordered  to  be  brought  into  court  where  the  defendant  admits, 
that  he  has  it  in  his  hands,  and  that  he  has  no  title  to  it. (A)  And 
there  are  many  instances  where  the  court  interposes  by  injunction 
to  secure  the  enjoyment  of  specific  chattels  ;  either  because  of 
their  peculiar  character ;  or  because,  from  the  nature  of  the  pro- 
perty, it  w^ould  be  difficult  or  impossible  for  the  plaintiff  to  have 
the  full  benefit  of  it,  unless  he  could  specifically  enjoy  it.(z) 

Looking  to  the  general  reasoning  and  principles  of  those  various 
cases  in  which  the  English  Court  of  Chancery  interposes  for  the 
preservation  of  property,  the  right  to  which  is  in  litigation,  it  does 
indeed  seem  strange,  that  it  has  so  pertinaciously  refused  an  injunc- 
tion to  prevent  irreparable  mischief,  and  to  put  a  stop  to  the  further 
commission  of  waste  upon  real  estate  during  the  continuance  of 
an  action  at  law  to  try  the  right.  It  is  admitted,  that  there  is  no 
good  reason  why  the  court  should  not  interfere  in  such  cases. 
Should  it  turn  out,  that  the  defendant  had  an  unquestionable 
title,  then  the  granting  of  sucb  an  injunction  could  only  ope- 
rate temporarily  and  partially  to  the  prejudice  of  the  free  exer- 

(c)  Hogg  V.  Kirby,  8  Ves.  215 ;  Wilkins  v.  Aikin,  17  Ves.  422 ;  Rundell  r.  Mur- 
ray, Jac.  Rep.  311 ;  Act  of  Congress,  1.5th  Fcbniar>'  1S19,  ch.  19. — (/)  Atkinson 
V.  Henshaw,  2  Ves.  k  Bea.  85.— {g)  Powell  Mort.  294,  note.— (/i)  Gordon  r.  Roth- 
ley,  3  Ves.  572  ;  Freeman  r.  Fairlie,  3  Meriv.  29. — (()  Fells  v.  Read,  3  Ves.  71; 
Lady  Arundell  i'.  Pliipps,  10  Ves.  143, 


580  DUVALL  V.  WATERS. 

cise  of  his  right  of  property.  But  on  the  other  hand,  if  it  should 
be  eventually  shewn,  that  the  plaintiff  had  the  title,  then,  as  the 
injunction  turns  no  one  out  of  possession,  nor  displaces  any  thing, 
it  must  necessarily  leave  to  the  defendant  the  advantage  of  fighting 
the  plaintiff  with  his  own  property.  Upon  which,  had  not  the 
injunction  been  granted,  the  most  irretrievable  destruction  might 
have  been  perpetrated ;  acts  of  waste  might  have  been  committed 
which  would  deprive  the  plaintiff  of  the  very  substance  of  his 
inheritance ;  mischief  might  have  been  done  which  it  would 
require  years  to  repair  ;  and  things  might  have  been  torn  away  or 
destroyed  which  it  would  be  difficult  or  impossible  to  restore  in 
kind ;  such  as  the  buildings,  fixtures,  trees,  or  other  peculiarities 
about  the  estate,  which  a  multitude  of  associated  recollections  had 
rendered  precious  to  their  owner ;  but,  as  a  compensation  for  the 
loss  of  which  a  jury  would  not  give  one  cent  beyond  their  mere 
value.  A  man  has  a  right  to  secure  to.  himself  a  property  even  in 
his  amusements  ;  and,  it  is  not  fit  in  any  such  cases  to  cast  it  to 
the  estimation  of  people,  who  may  have  not  the  least  sympathy 
with  the  feelings  of  the  owner,  to  set  a  value  upon  his  privileges 
or  his  property. (J) 

The  High  Court  of  Chancery  of  Maryland  has  from  the  begin- 
ning, or  certainly  for  a  great  length  of  time  past,  in  this  respect, 
acted  more  in  harmony  with  its  general  principles,  than  the  Court 
of  Chancery  of  England,  by  interposing  to  prevent  waste  and 
destruction  in  all  cases,  during  the  continuance  of  a  suit  in  which 
the  title  to  the  property  has  been,  or  may  be  brought  in  question  ;  as 
well  where  the  subject  of  litigation  was  real  estate,  as  where  it 
was  mere  perishable  personalty,  or  money,  or  choses  in  action  in 
the  hands  of  the  defendant.  A  similar  and  equally  extensive 
application  of  the  writ  of  injunction  to  stay  waste,  appears  to  have 
been  made  by  the  courts  of  chancery  of  Virginia  and  South  Caro- 
lina.{k)  As  I  have  before  observed,  there  is  sufficient  evidence  of 
the  writ  of  estrepement  ha\ang  been  at  one  time  often  resorted  to  in 
this  State  ;  although  it  has  now  fallen  into  total  disuse.  But  even 
that  writ  must  have  been    a  very  tardy  and  inadequate  remedy 


( j)  Fells  V.  Road,  3  Ves.  70 ;    Smith  v.  Collyer,  8  Ves.  89  ;   Berkely  v.  Brymer, 

9  Ves.  356 ;    Lady  Arundell  v.  Phipps,  10  Ves.  143 ;    Courthope  v.  Mapplesden, 

10  Ves.  291 ;  Lowthert).  Lord  Lowther,  13  Ves.  95  ;  Crockford  v.  Alexander,  15  Ves. 
13S;  Earl  Co\\'per  i'.  Baker,  17  Ves.  123;  Astley  jj.  Weldon,  2  Bos.  &.  Pul.  351 ; 
Kimpton  v.  Eve,  2  Ves.  ?t  Bca.  349.— (/c)  Ilairis  r.  Thomas,  1  Hen.  &  Mun.  18  ; 
Shubrick  v.  Gueraid,  2  Dcsau.  616. 


DUVALL  V.  WATERS.  581 

compared  with  an  injunction;  which  is  the  only  judicial  proceed- 
ing, that  seems  to  be,  in  all  respects,  capable,  by  its  promptness 
and  vigor,  of  preventing  irreparable  mischief  from  being  done  to 
real  estate  pending  the  litigation,  by  a  provoked  and  desperate 
defendant. 

When  this  mode  of  interposing  by  injunction  to  stay  waste, 
pending  an  action  at  law  or  a  bill  in  chancery,  was  first  allowed 
by  this  court,  I  have  not  been  able  distinctly  to  ascertain;  but  it  is 
evident,  that  it  had  been  considered  as  a  settled  course  of  proceed- 
ing under  the  Provincial  Government ;  for  upon  an  information  in 
chancery,  filed  on  the  13th  of  April  1775,  by  the  attorney  general, 
at  the  relation  of  Josias  Boiven,  against  JVicholas  j\^07'wood,  to 
vacate  a  patent  grant  for  a  tract  of  land,  it  w^as  alleged,  that  the 
defendant  in  possession  was  committing  great  waste  ;  to  stay  which 
an  injunction  was  asked  and  immediately  granted  until  the  final 
hearing.(Z)     I  have  seen  a  case  of  this  kind,  in  which,  in  the  year 


(Z)  The  Attorney  General  v.  Norwood. — This  was  an  information  filed  in 
the  High  Court  of  Chancery,  on  the  13th  of  April  1775,  at  the  relation  of  Josias 
Bowen  to  vacate  a  patent  which  had  been  obtained  by  the  father  of  the  defendants, 
for  a  tract  of  land,  which  the  relator  had  previously  caused  to  be  surveyed ;  but  was 
prevented  from  obtaining  a  patent  for  it,  by  the  father  of  the  defendants  having  fraud- 
ulently contrived  previously  to  get  a  patent  for  the  same  land. 

The  information  states,  that  in  confidence  of  his  being  clearly  entitled  to  a  patent, 
the  relator  had  brought  his  action  of  ejectment  against  the  father  of  the  defendants ; 
pending  which  action  his  certificate  was  caveated,  and  the  caveat  ruled  good,  by  rea- 
son of  Norwood's  producing  an  elder  patent ;  which  patent  it  is  averred  he  had 
fraudulently  obtained ;  that  afterwards  the  relator's  action  of  ejectment  was  non 
pros'd  with  costs  ;  which  judgment  he  superseded ;  that  Norwood,  after  that,  con- 
veyed the  land  to  his  son,  this  defendant  Nicholas  N'orwood ;  and,  by  his  will, 
appointed  his  other  son,  the  defendant  Edward  Norwood,  his  executor,  and  died ; 
that  Nicholas  Norwood  had  taken  possession  of  the  land,  and  was  committing  great 
waste ;  and  that  Edward  Norwood  had,  by  scire  facias,  revived  the  judgment  for 
costs  in  the  action  of  ejectment,  and  threatened  to  sue  out  execution  against  the  relator. 

Upon  which  the  information  prayed,  that  the  patent  obtained  by  Norwood  might 
be  vacated,  and  possession  of  the  land  delivered  ;  that  Nicholas  Norwood  might,  btj 
an  injunction,  be  restrained  from  committing  waste,  &c. ;  and  that  Edward  Norwood 
might  be  prohibited  from  proceeding  at  law. 

The  relator  made  affidavit  to  the  truth  of  the  facts  set  forth  in  the  information ; 
and  also  gave  bond  to  prosecute  as  in  common  cases  to  stay  proceedings  at  law. 
Upon  which,  on  the  same  day,  an  injunction  was  granted  as  prayed. 

On  the  7th  of  July  1785,  it  was  decreed,  that  the  injunction  be  made  perpetual, 
that  the  patent  be  vacated,  and  thatthe  possession  be  delivered. —  Chanc.  Proc.  No.  2, 
fol.  211. — This  case  is  in  other  respects  more  fully  repoi-ted  in  2  H.  &  McH.  201. 

CoALE  V.  Garretson. — This  bill  was  filed,  on  the  1.5th  of  February  1791,  by 
Richard  Coale  against  Job  Garretson.  It  sets  forth  all  the  particulars  of  the  plaintiff's 
case,  by  which  it  appears  in  substance,  that  on  a  certificate,  bearing  date  on  the  8th 
of  Januarj-  1773,  he  had  in  April  1775  obtained  a  patent  for  a  tract  of  land  called 


582  DUVALL  V.  WATERS. 

1783,  this  form  of  a  writ  of  injunction  to  stay  waste  pending  an 
action  of  ejectment,  ap})ears  to  have  been  treated  as  then  well 
established ;(???)  and  I  have  met  with  another  instance  in  which  an 

Coale's  Discovery.  But  that  the  defendant  kad,  by  the  fraudulent  means  therein 
stated,  caused  a  certificate  of  survey  of  the  same  land  to  be  made  on  the  17th  of  June 
1772  ;  upon  which  he  had  obtained  a  patent  5  that  afterwards  this  defendant  brought 
an  action  of  ejectment  and  obtained  a  judgment.  The  bill  alleged,  that  this  defend- 
ant had  been  put  into  possession  by  the  sheriff  under  a  writ  of  possession  ;  and  that 
he  had  issued  a  ca.  sa.  for  costs,  which  this  plaintiff  had  superseded  ;  but  it  is  not 
averred,  or  even  intimated  in  the  bill,  that  this  defendant  had  committed,  or  ever 
threatened  to  commit  waste.  Yet  the  bill  prayed  for  an  injunction  to  prevent  the  said 
Job  Garretson  from  committing  any  waste  on  the  said  tract  of  land  called  CoaWs 
Discovery ;  also  to  prevent  the  said  Garretson  from  serving  the  said  execution,  or 
from  proceeding  any  further  on  the  said  judgment ;  and  for  general  relief,  &c.  There 
was  an  aifidavit,  in  tlie  usual  form,  of  the  truth  of  the  matters  set  forth ;  and  an 
injunction  bond. 

loth  February,  1791. — Hanson,  Chancellor. — Issue  subpcena  and  injunction  to  stay 
execution  for  costs  ;  but  not  waste. 

The  defendant  on  the  1-lth  of  December  1793,  put  in  his  answer  by  which  he 
denied  all  fraud,  and  also  positively  denied  the  legality  and  validity  of  the  plaintiff's 
title,  &c. 

Some  time  after  which  the  plaintiff,  by  his  petition  on  oath,  set  forth  and  averred, 
that  the  defendant  had  cut  down  and  carried  away  wood  and  timber  growing  on  the 
land  in  controversy ;  and  still  continued  to  commit  waste  and  destruction  upon  the 
land,  &.C.  Whereupon  he  prayed  for  an  injunction  to  stay  waste  and  destruction 
upon  the  said  tract  of  land  called  Coale's  Discovery,  8cc. 

28/A  Ocioher,  1795. — Hanson,  Chancellor. — Issue  injunction  to  prohibit  waste,  &c. 
in  CoaWs  Discovcnj,  in  Baltimore  county,  surveyed  for  Richard  Coale  agreeably  to 
the  prayer  of  this  petition. 

After  which  the  case  coming  on  for  final  hearing  on  bill,  answer  and  proofs,  it  was 
on  the  25th  of  May  1797  decreed,  that  the  injunction  be  made  perpetual,  and  that  the 
defendant  convey  the  land  to  the  plaintiff.  MS. — In  other  respects  this  case  seems 
to  be  sufficiently  reported  in  1  H.  8c  J.  370,  378. 

(?n)  Mar}-land,  to  wit: — The  State  of  Maryland  to  Michael  Krips,  his  agents,  hire- 
lings and  servants,  Greeting  :  Whereas  Edward  Flannagan  of  Baltimore  county,  and 
Elizabeth  his  wife  have  exhibited  unto  us  in  our  High  Court  of  Chancery  their  bill  of 
complaint  for  relief  in  equity,  and  to  stay  the  commission  of  waste  in  and  upon  part 
of  a  tract  of  land  called  Mountenay 's  Neck  lying  and  being  in  Baltimore  county,  pend- 
ing a  certain  action  of  ejectment  brought  by  them  the  said  Edward  Flannagan  and 
Elizabeth  his  Avife,  against  you  the  said  Michael  Krips,  as  tenant  in  possession  of  said 
land,  or  some  part  thereof,  in  the  General  Court  of  the  Western  Shore  :  We  there- 
fore command,  and  shictly  injoin  you  the  said  Michael  Krips,  your  agent%  hirelings 
and  servants,  and  every  of  them  to  Stay,  surcease  and  forbear  digging,  carrying  away 
and  removing  the  dirt,  earth  and  soil  of  the  said  land  and  premises ;  or  doing  or  com- 
mitting any  manner  of  waste,  spoil,  and  destruction  thereon,  pending  the  said  suit, 
or  until  the  further  order  of  the  High  Court  of  Chancery.  Hereof  fail  not,  as  you 
will  answer  the  contrary  at  your  peril. 

Witness  the  Honourable  John  Rogers,  Esquire,  Chancellor,  this  28th  day  of  April, 
Anno  Domini,  1783.  Wm.  Hyde,  Reg.  Cur.  Can. 

Sec  Old  Book  of  Forms,  page  13. 


DUVALL  I'.  WATERS.  5S3 

injunction  was  granted  in  the  year  1S03,  apparently  without  hesi- 
tation, to  stay  waste  until  the  final  judgment  in. an  action  of  eject- 
ment. In  which  case,  on  its  being  urged  that  the  defendant  ought 
not  to  be  thus  deprived  of  the  free  use  of  his  property,  the  court 
said,  that  he  had  no  other  mode  of  relieving  himself  from  the 
restriction  than  by  pressing  the  action  at  law  to  a  conclusion  as 
speedily  as  possible.  (;t)  I  have  met  with  many  other  similar  cases  ; 
but  in  no  one  of  them  does  it  appear  that  any  objection  had  been 
made,  grounded  upon  the  principles  of  the  English  authorities, 
against  the  propriety  of  granting  or  continuing  the  injunc- 
tion, because  the  plaintiff  had  stated,  that  his  title  was  disputed, 
or  because  the  defendant  had  positively  denied  its  validity.     And 


(7i)  GiTTiNGS  V.  Dew. — The  bill  states,  that  the  plaintiff  James  Gittings  was 
seized  and  possessed  of  several  parcels  of  land  in  Baltimore  county,  into  a  part  of 
which  the  defendant  Robert  Dew  had  wrongfully  entered ;  that  the  plaintiff  had  com- 
menced an  action  of  ejectment  against  the  defendant  to  recover  such  parts  as  he  had 
entered  upon,  which  suit  was  then  undetermined ;  that  the  defendant  was  cutting 
down  the  timber  and  other  trees  thereon  and  making  great  waste  and  destruction, 
and  the  plaintiff  apprehended  would  continue  to  do  so.  Upon  which  the  bill  prayed 
for  a  suipczna  and  an  injunction,  prohibiting  the  defendant,  his  agents,  &c.  from  cut- 
ting down  or  carrying  away  timber  trees  or  other  tiees  or  wood  gi'owing  and  being 
on  the  land  ;  and  from  committing  any  tvaste  thereon  -until  the  final  decision  and  judg- 
ment in  the  ejectment ;  or  until  furtlier  order,  &,c. 

14th  January,  1803. — Hanson,  Chancellor. — Issue  sitbpcena  and  injunction  agree- 
ably to  the  prayer  of  this  bill. 


It  does  not  appear  fliat  the  defendant  ever  put  in  any  answer  to  this  bill.  But  on 
the  petition  of  the  plaintiff,  stating  that  the  defendant  had  committed  waste  in  breach 
of  tlie  injunction,  accompanied  by  an  affidavit  of  Archibald  Davis  stating  the  cir- 
cumstances, an  attachment  was  ordered  on  the  1st  of  January  1807  returnable  to 
February  term.  The  attachment  having  been  issued  and  sei-ved,  the  defendant  Dew 
appeared  and  filed  his  answer  on  oath,  to  the  petition,  in  which  he  states,  that  he  had 
cut  some  cordwood  as  alleged ;  but  that  the  plaintiff  had  not,  as  he  ought  to  have 
done,  caused  the  surveyor  to  lay  down  his  claim  and  pretensions ;  that  this  defendant 
had  been  assured  by  his  counsel,  that  after  tlie  first  term  to  which  the  injunction  was 
returnable  he  had  a  right  to  cut  wood  ;  that  under  such  an  impression,  and  firmly 
believing  as  he  then  did,  that  the  plaintiff  bad  no  right  to  th&  land,  he  had  cut  the 
cordwood  as  stated  ;  but  in  doing  so,  he  had  no  intention  of  setting  the  authority  of 
this  court  at  defiance  ;  and  was  ignorant  that  what  he  had  done  was  ^v^ong. 

26^/t  Februanj,  1807. — Kilty,  Chancellor. — The  suit  at  law  was  to  decide  title  and 
location,  and  the  injunction  \.o  restrain  waste  until  those  points  were  decided.  There- 
fore it  is  no  sufficient  answer  for  the  defendant  to  say  that  the  land  was  his  and  the 
location  unascertained.  If  the  plaintiff,  at  law,  is  tardy,  the  defendant  must  urge 
him  to  proceed.  In  consideration  of  the  excuses  contained  in  the  answer,  and  the 
plaintiff  not  pressing  for  a  commitment  or  fine  ;  it  is  ordered,  that  tlie  defendant 
Robert  Dew  be  discharged  from  the  attachment  on  paying  the  costs  thereof. 


584  DUVALL  V.  WATERS. 

SO  too  in  cases  of  nuisance,  althougli  it  is  necessary  in  England, 
that  the  individuals  complaining  of  the  injury  should  have 
had  their  rights  first  established  at  law,(o)  yet  here,  where  an 
action  or  the  proper  proceeding  has  been  instituted  to  try  the  right, 
an  injunction  may  be  granted  to  prevent  the  repetition  or  further 
continuance  of  the  nuisance  until  the  right  has  been  thus  deter- 
mined at  law  or  in  the  regular  mode.(p) 

The  writ  of  injunction  in  cases  of  this  kind,  to  stay  waste  pend- 
ing a  suit  to  try  the  right,  has,  in  Maryland,  taken  the  place  and 
performs  the  office,  in  all  respects,  of  the  ancient  writ  of  estrepe- 
ment.  It  is  an  injunction  not  founded  on  any  privity  of  title  or 
contract  whatever ;  it  is  an  attendant  upon  and  an  auxiliary  of  the 
action  at  common  law,  or  the  suit  in  this  court  in  which  the  title 
has  been  or  may  be  drawn  in  question  ;  it  follows  and  shares  the 


(o)  Mitf.  Plea.  lU.—(p)  Williamson  v.  Carnan,  1  G.  &,  J.  184. 

Pascault  v.  The  Commissioners  of  Baltimore. — 1st  March,  1797. — Hanson, 
Chancellor. — The  motion  to  dissolve  the  injunction  in  this  cause  issued,  being  sub- 
mitted, the  bill  and  answers  were  by  the  Chancellor  read  and  considered. 

When  the  bill  was  presented  to  him  for  the  purpose  of  obtaining  the  injunction,  it 
was  not  his  idea,  that  this  court  ought  to  control  the  judgment  of  the  commissioners. 
It  appeared  to  him,  that  whenever  they  exercise  their  judgment  on  a  subject,  over 
which  the  law  hath  invested  them  with  power,  and  they  determine  on  an  act  to 
which  that  power  is  competent,  they  cannot  with  propriety  be  restrained.  It  was 
not  his  province  to  decide,  whether  or  not  a  street  should  be  paved,  or  a  sewer 
repaired,  or  whether  or  not  the  intended  act  of  the  commissioners  would  be  beneficial 
to  a  majority  of  the  persons  to  be  affected  by  the  act.  But  he  considered  the  power 
of  this  court  rightfully  exercised,  on  the  application  of  any  person,  who  is  apprehen- 
sive of  injury,  in  restraining  a  proceeding  not  authorized  by  law.  He  conceived, 
that  the  power  conferred  on  them  by  the  act  of  Assembly  referred  to  in  the  bill  does 
not  extend  to  the  removing  a  pavement  already  made,  which  was  not  even  alleged  to 
want  repairs,  and  lowering  a  street  for  the  avowed  purpose  of  changing  the  course 
of  waters,  against  the  consent  and  remonstrance  of  any  individual  citizen,  whose 
property  is  to  be  thereby  affected.  The  pow'er  conferred  on  them  by  the  aforesaid 
act  of  Assembly,  is  to  make,  amend,  repair,  pave,  and  keep  clean  streets,  alleys  and 
lanes  ;  to  make,  amend  and  repair  bridges  ;  and  amend,  and  repair  sewers  ;  and  so 
long  as  they  bona  fide  exercise  only  that  power,  they  will  not  be  restrained  by  this 
tribunal. 

Now  supposing  the  extent  of  their  power  to  be  only  doubtful,  and  that  the  com- 
plainants on  bringing  suit  at  law,  and  shewing,  that  they  have  been  injured  by  the 
commissioners' completing  their  intended  act,  might  recover  ample  damages;  it  is 
certainly  better,  that  an  unlawful  proceeding  be  prevented,  than  that  recourse  be  had 
to  a  court  of  law,  after  the  injury  is  done. 

The  Chancellor's  opinion  has  not  been  changed  by  a  perusal  of  the  answers.  He 
regrets,  that  the  point  was  not  argued  by  the  counsel. 

It  is  ordered,  that  the  aforesaid  injunction  be  continued  until  the  final  hearing  of 
the  cause,  or  the  further  order  of  this  court. 


DUVALL  V.  WATERS.  535 

fate  of  that  suit,  and  cannot  be  dissolved  upon  an  answer,  in  any- 
way, denying  the  plaintiff's  title,  until  that  suit  has  been  fully 
determined  in  favour  of  the  defendant.  Like  an  estrepement, 
its  restrictions  do  not  extend  to  an  inhibition  of  any  ordinary- 
use  of  the  land  by  the  occupying  tenant ;  for  he  is  allowed  to 
cultivate  it  as  usual,  and  to  take  wood  for  fuel,  repairing  of  houses, 
for  fencing  and  the  like,  so  he  does  no  waste  or  destruction  to  the 
inheritance. 

It  must,  however,  be  recollected,  that  there  is  no  instance  of  this 
court's  ever  having  interposed  by  an  injunction  to  prevent  a  mere 
trespass,  not  instant  and  irreparable  where  no  suit  had  been  instituted^ 
here  or  in  a  court  of  common  law,  involving  the  title  ;  for,  against 
the  granting  of  such  an  injunction,  which  does  not  operate  as  an 
auxiliary  to  a  suit  to  try  the  right,  the  same  reasons  apply  here  as 
in  England.  It  does  not  fall  within  the  jurisdiction  of  a  court  of 
equity  to  try  the  validity  of  mere  legal  titles  ;  for  all  such  purposes 
recourse  must  be  had  to  the  ordinary  tribunals  of  the  common  law. 
A  person  can  only  come  here  to  obtain  the  interposition  of  the 
conservative  powers  of  this  court  in  cases  where  the  common  law 
remedies  are  inadequate  or  to  which  they  do  not  at  all  apply.  If 
the  plaintiff's  title  is  denied,  and  he  acquiesces  in  the  denial  by 
refusing  to  bring  an  action  at  law  to  have  it  authenticated  and  sus- 
tained, he  can  have  no  ground  to  ask  any  relief  of  this  court, 
founded  on  a  claim  which  he  himself  thus  shrinks  from  having 
judicially  investigated,  or  put  into  a  course  of  being  legally 
established. 

In  conclusion  I  deem  it  proper  to  remark,  that  this  mode  of 
applying  for  this  injunction  by  a  separate  bill,  was  irregular  and 
improper  ;  it  should  have  been  asked  for  by  a  petition,  filed  in  this 
case,  without  praying  for  a  subpoena  to  bring  in  defendants  who 
were  already  before  the  court.  The  urgency  of  the  case  may  be  some 
excuse  for  the  irregularity  ;  but  I  shall  in  all  cases  as  far  as  practi- 
cable require  parties  to  pursue  the  regular  and  proper  course. (9)  In 
this  instance,  however,  the  injunction  seems  to  have  been  extended 
rather  beyond  the  bounds  of  the  case  presented  by  the  bill  itself; 
as  to  so  much  therefore  it  will  be  dissolved,  or  rather  circumscribed 
within  its  proper  limits. 


(q)  Eden.  Inj.  209;  Anonymous,  1  Ves.jun.  93;  Calvert  v.  Gason,  2  Scho.  & 
Left.  561 ;  Coale  v.  Garretson,  ante  581,  note. 

74 


586  DUVALL  V.  WATERS. 

Whereupon  it  is  ordered,  that  the  injunction  heretofore  granted 
in  this  case,  in  so  far  as  it  prohibits  the  removal  of  any  timber  or 
wood  which  had  been  cut  and  severed  from  the  land  prior  to  the 
service  thereof;  and  also  from  cutting  and  taking  away  timber  or 
wood  necessary  for  the  repairs  of  buildings  or  fences,  and  for  the 
use  or  proper  cultivation  of  the  land,  be  and  the  same  is  hereby 
dissolved ;  and  that  in  all  other  respects  the  same  be  and  is  hereby 
continued  until  the  final  hearing  or  further  order. 


After  this  the  original  and  principal  case  was  brought  before 
the  court. 

19th  May,  1829, — Bland,  Chancellor. — This  case  standing  ready 
for  hearing,  and  having  been  submitted  on  the  notes  of  the  defend- 
ants' solicitor,  and  no  one  appearing  on  behalf  of  the  plaintiff 
before  the  end  of  the  sittings  of  the  term  according  to  the  rules  of 
the  court,  the  proceedings  were  read  and  considered. 

Samuel  Peach,  having  obtained  a  judgment  at  law,  in  Prince 
George's  county  court,  against  this  defendant  JYathan  Waters,  sued 
out  a  fieri  facias,  which  was  levied  on  certain  parcels  of  land  as 
his  property ;  whereupon  the  sheriff,  at  April  term  1827  of  that 
court,  made  a  return  in  the  following  words  :  "  Made  by  sale  to 
Doctor  Charles  Duvall  on  the  thirtieth  day  of  December  eighteen 
hundred  and  twenty-six,  of  all  the  interest  of  the  defendant  in  and 
to  the  following  parcels  of  land ;  to  wit,  one  tract  of  land  called 
Pastures  Enlarged,  containing  two  hundred  acres  more  or  less  ;  one 
tract  of  land  called  Oshourne's  lot  and  part  of  Pleasant  Grove,  con- 
taining fifty-two  acres  more  or  less  ;  one  tract  of  land  called 
DuvaWs  Pleasure,  or  part  of  DuvalVs  Pleasure,  containing  one 
hundred  and  fifty  acres  more  or  less  ;  one  tract  of  land  called 
Teukesbury,  and  a  part  of  Teukeshury  and  Walker^s  Delight,  con- 
taining one  hundred  and  fifty  acres  more  or  less ;  and  a  tract  of 
land  called  Friendship,  containing  one  hundred  and  eighty  acres, 
the  sum  of  thirteen  hundred  and  fifty  dollars,  which  has  been  paid 
to  me  by  the  said  Charles  Duvall,  and  by  me  paid  to  the  plaintifPs 
attorney." 

This  return  constitutes  tlie  commencement  of  the  title  of  the 
plaintiff  upon  which  he  rests  his  pretensions.  He  alleges,  that  the 
defendant  jyathan  Waters,  by  a  deed  bearing  date  on  the  17th  of 
February  1824,  conveyed  the  lands  mentioned  in  this  return  to 
JVathan  I.  Waters,  and  Samuel  Ratcliff ;  that  Ratclijf  had  conveyed 


DUVALL  V.  VrATERS.  587 

a  part  of  the  same  lands  to  Kathan  I.  IVatcrs,  by  a  deed  bearing 
date  on  the  29th  of  August  1825;  and  that  these  deeds  were  made 
without  valuable  consideration,  and  are  fraudulent  and  void. 
Whereupon  he  prayed,  that  they  might  be  set  aside  and  annulled 
as  against  him. 

The  defendants  by  their  answer  alleged,  that  the  deeds  were 
made  bonajide,  for  a  valuable  consideration,  and  they  objected,  that 
the  return  of  the  sheriff  was  so  defective,  that  it  could  give  to  the 
plaintiff  no  title  whatever. 

If  these  deeds  are  really  valid,  as  tlie  defendants  contend,  there 
is  an  end  of  the  matter,  since  it  cannot  be  necessary  to  inquire  into 
the  correctness  of  the  return  for  any  other  purpose  than  to  ascertain 
how  far  it  is  available  as  passing  the  property  of  J\'athan  Waters  ; 
which  alone  was  liable  to  be  seized  and  sold  under  \\\e  fieri  facias. 

The  first  question  then  is,  whether  those  deeds  were  bona  fide 
and  valid  transactions  or  not?  The  deed  of  the  17th  of  February 
1824,  which  is  the  principal  one,  carries  upon  its  face,  that  which 
is  calculated  to  awaken  suspicion.  It  deals  in  comprehensive 
generalities.  Such  and  such  tracts  or  parcels  of  land  by  name, 
without  any  particular  specification  of  locations  or  boundaries  ; 
and,  all  the  furniture  and  plantation  utensils,  w'ithout  any  schedule 
of  them,  are  conveyed  to  the  grantees.  There  is  certainly  nothing 
absolutely  illegal  in  this  mode  of  conveying  property ;  but  real 
sellers  and  purchasers  do  not  commonly  deal  so  loosely.  There  is 
usually  some  other  security  required,  than  the  purchaser's  own  bond 
merely  for  so  large  an  amount  of  purchase  money  as  nine  thousand 
one  hundred  and  fifty  dollars  in  return  for  an  absolute  deed  of  this 
kind  ;  and  the  purchaser  too,  in  most  cases,  is  not  content  with 
any  thing  short  of  a  precise  and  unequivocal  description  of  the 
property  he  has  bought  and  intends  honestly  to  pay  for.  At  the 
time  this  deed,  of  the  17th  of  Februarj-  1S24,  was  made,  the 
defendant  JVathan  Waters,  who  lived  upon  this  land,  had  one  son 
and  five  or  six  daughters,  all  of  whom  were  more  or  less  depend- 
ent upon  him.  He  was  in  embarrassed  circumstances.  His 
vounger  daughters  lived  with  him  ;  and  his  son  also,  was  an  inmate 
of  his  house,  and  occasionally  worked  with  him  at  his  trade  of  a 
millwright ;  but  it  is  somewhat  doubtful  whether  his  son  \vas  then 
of  full  age  or  not ;  the  witnesses  differ  about  the  fact.  Samuel 
Rafcliff,  William  Beck,  and  Philemon  Jones,  with  their  wives,  who 
were  his  daughters,  also  lived  upon  this  land,  and  derived  their 


588  DUVALL  f.  WATERS. 

subsistence  from  it.  After  the  date  of  the  conveyance  of  the 
17th  of  February  1824  to  JYathan  I.  Waters,  the  son,  and  Samuel 
Ratdiff  the  son-in-law,  JVathan  Waters  continued  to  hold  posses- 
sion of  the  land,  claiming  it  as  his  own,  and  exercising  many 
unequivocal  acts  of  ownership  over  it;  he  sold  timber  off  it, he  rented 
parcels  of  it,  and  gave  receipts  for  the  rent  as  due  to  himself ;  and 
he  once  drove  from  it  his  son  ;  who,  as  well  as  Ratdiff,  admitted, 
after  the  date  of  the  deed,  that  they  had  no  right  to  it.  There  is 
no  clear  unsuspicious  proof,  that  either  JVathan  I.  Waters  or  Samuel 
Ratdiff  ever  paid  to  J\^athan  Waters  any  thing  whatever  for  this 
land.  The  one,  as  his  son,  and  the  other,  as  the  husband  of  one 
of  his  daughters,  no  doubt  had  his  confidence  and  shared  his  best 
affections;  and  the  more  so  as  they  were  both  poor  and  had  no 
way  of  accumulating  large  sums  of  money. 

In  short,  it  is  clear,  from  all  the  circumstances  of  this  case,  tliat 
this  deed,  of  the  17th  of  February  1824,  was  in  truth,  made,  as 
JVathan  Waters  himself  declared  to  one  of  the  witnesses,  merely 
"  for  the  purpose  of  protecting  his  property  until  he  could  pay  his 
debts,"  and,  that  it  was  a  conveyance  contrived  with  the  express 
intent  to  defraud  his  creditors ;  or  as  it  is  declared  in  the  strong 
language  of  the  venerable  statute  of  1570,  "  not  only  to  the  let  or 
hindrance  of  the  due  course  and  execution  of  law  and  justice, 
but  also  to  the  overthrow  of  all  true  and  plain  dealing,  bargaining 
and  chevisance  between  man  and  man."(r)  I  shall  therefore  pro- 
nounce both  these  deeds,  for  the  second  must  follow  the  fate  of  the 
first,  to  be  utterly  void  as  against  this  plaintiff  if  his  claim  under 
the  return  be  a  sound  one. 

The  next  inquiiy,  therefore,  is,  as  to  the  validity  of  the  plain- 
tiff's claim.  The  property  in  question  was  sold  by  tlie  sheriff 
imder  and  by  virtue  of  a  writ  of  fieri  fadas  issued  on  a  judgment 
obtained  in  an  action  at  common  law  by  Samuel  Peach  against  this 
defendant  JVathan  Waters  ;  and  this  plaintiff  makes  title  as  the 
purchaser  at  that  sale.  But  these  defendants  object,  that  the 
description  of  the  lands  as  given  by  the  sheriff,  in  his  return  to  the 
fieri  fadas,  is  so  vague  and  uncertain  as  to  convey  no  valid  title 
to  the  plaintiff  as  purchaser.  What  degree  of  certainty  in  the  spe- 
cification of  the  land  taken  and  sold  is  necessary  to  be  given  by 
the  sheriff,  in  his  return  to  the  fiieri  fadas  under  which  the  levy  was 

(?)  13  Eliz.  c.  5. 


DUVALL  V.  WATERS.  589 

made,  is  a  question  of  importance,  and  deserves  to  be  carefully 
considered. 

By  the  common  law  land  was  not  liable  to  be  taken  in  execu- 
tion and  sold  for  the  payment  of  debts.  Under  a  fieri  facias 
nothing,  according  to  the  common  law,  could  be  taken  but  chat- 
tels, moveable  property,  the  industrial  fruits  of  the  earth  then 
growing,  such  as  corn,  wheat,  &c.,  or  leases  for  years,  of  which 
the  writ  commanded  the  sheriff  to  levy  the  debt,  by  a  sale,  con- 
verting them  into  money.  The  sale  of  all  personal  property  pass- 
ing the  right  without  any  more  solemn  act  than  a  mere  delivery ; 
a  sale  and  delivery,  by  the  sheriff  of  such  property,  was  held  to 
be  sufficient  in  all  cases  to  vest  a  complete  and  absolute  title  in  the 
purchaser,  without  any  particular  specification  of  the  thing,  thus 
taken  and  sold.  It  was,  therefore,  unnecessar}'  for  the  sheriff  to 
make  any  return  of  a  fieri  facias  either  for  his  own  justification,  or 
as  an  evidence  of  the  title  of  the  purchaser  of  the  goods  ;  although 
the  sheriff  might  be  required  to  make  return  of  such  an  execution, 
so  as  to  compel  him  to  shew  what  he  had  done  towards  le^-ying 
the  debt  as  commanded,  and  so  as  to  enable  the  plaintiff,  if  neces- 
sary, to  proceed  further  against  the  defendant  for  the  recovery  of 
the  whole  or  the  residue  of  his  claim.  (5) 

By  an  English  statute  passed  in  the  year  1285,(f)  lands  were 
partially  subjected  to  be  taken  in  execution  under  an  elegit,  and 
held  until  the  debt  should  be  levied  upon  a  reasonable  price  or 
extent.(w)  This  statute  having,  however,  prescribed  no  mode  of 
proceeding,  nor  required  of  the  sheriff  any  return  of  the  execu- 
tion ;  it  was  held,  that  what  was  a  reasonable  price  or  extent  could 
only  be  ascertained  by  a  jury  ;  which  inquisition  by  a  jury,  it  was 
also  held,  the  sheriff  was  bound  to  take  and  return ;  because  it 
materially  affected  the  title  to  the  inheritance  ;  and  because,  where 
an  inquisition  was  thus  required,  it  was  fit  and  proper,  that  it 
should  be  returned  to  enable  the  court  to  judge  of  its  sufficiency 
and  of  the  propriety  of  its  being  placed  upon  the  same  record  with 
the  judgment,  to  which  it  was  the  sequel.  And  hence  it  became 
the  established  law,  that  all  writs  of  elegit,  under  the  statute,  should 
be  returned ;  and  that  the  inquisition  and  return  should  be  filed  as 
a  part  of  the  record  of  the  case.  Whence  it  is  evident,  that  a  title 
by  elegit  must  be  thus  put  in  writing  and  recorded. (i') 

(s)  Com.  Dig.  tit.  Execution,  (C.  7.)— (0  West.  2,  c.  IS.— (?/)  2  Inst.  394. 
(v)  2  Inst.  396;  Dyer.  ca.  71,  fol.  100  ;  Fulvvood's  Case,  4  Co.  67;  Palmer's  Case, 
4  Co.  74 ;  Hoe's  Case,  5  Co.  90 ;  Underbill  v.  Devereux,  2  Saund.  69,  note  2. 


590  DUVALL  V.  WATERS 

This  had  been  introduced  as  the  law  of  Maryland  and  was  in 
regular  and  constant  operation, (zo)  when  it  was  declared,  by  a  Bri- 
tish statute  passed  in  the  year  1732,(0-)  that  real  estates,  situate  in 
the  plantations,  belonging  to  any  person  indebted,  should  be  subject 
to  the  like  process  for  selling  and  disposing  of  the  same  towards 
the  satisfaction  of  debts  as  personal  estate.  This  British  statute 
appears  to  have  been  first  introduced  as  the  law  of  Maryland  about 
the  year  1740.  (y)  This  statute,  however,  specified  no  mode  of 
judicial  proceeding,  nor  designated  any  form  of  execution,  but, 
like  the  previous  English  statute,  under  which  the  proceeding  by 
elegit  had  been  framed,  it  merely  declared  the  rule,  leaving  its 
application  to  be  made  by  the  courts  of  justice  in  such  manner  and 
form  as  they  deemed  best. 

In  Maryland,  for  the  purpose  of  executing  and  conforming  to 
this  British  statute,  the  writ  of  fieri  facias  was  so  altered  as  to 
command,  that  the  debt  should  be  levied  of  '■'■  the  lands  and  tene- 
ments''^ as  well  as  of  the  goods  and  chattels  of  the  defendant.  And 
as  an  English  statute  passed  in  the  year  1676, (c;)  and  which  had 
been  then  adopted  here,  had  declared,  that  no  estate  or  interest  in 
lands,  exceeding  the  term  of  three  years,  should  be  assigned  or 
granted  unless  by  deed  or  note  in  waiting ;  and  as  the  acts  of 
Assembly  required  all  conveyances  of  any  estate,  for  above  seven 
years,  in  lands  to  be  in  writing  and  recorded  ;(o)  it  seems  to  have 
been  always  considered  and  held,  that,  although  the  title  to  land, 
as  in  case  of  a  levy  of  the  fieri  facias  upon  personalty,  passed  by 
the  sale  made  by  the  sheriff;  yet  some  ivritten  evidence  of  the  sale 
was  necessary,  and  that  such  evidence  should  be  recorded.  Hence 
although  no  inquisition  was  required,  as  under  the  English  statute 
giving  the  elegit ;  yet,  it  seems  to  have  been  always  understood, 
that,  in  all  cases,  where  real  estate  was  levied  upon  and  sold,  it 
was  necessary,  as  an  evidence  of  the  title  which  had  been  so 
passed  by  the  sale,  that  the  fieri  facias  should  be  returned,  that 
the  sheriff  should  specify  with  sufficient  certainty  in  his  return  the 
real  estate  which  he  had  so  sold,  and  that  the  return  so  made  by 
him  should  be  recorded. (6) 

Upon  these  general  principles  it  has  been  laid  down,  that  a 
return  of  a  sale  of  lands  under  a  fieri  facias  should  regularly,  for 


(w)  Kilty's  Rep.  144.— (a:)  5  Geo.  2,  c.  7.— (?/)  Davidson's  Lessee  v.  Beatt)%  3  H. 
&  McH.  612.— (r)  29  Car.  2,  c.  3,  s.  3.— (a)  1715,  ch.  47.— (6)  Bull  v.  Shcre- 
dine,  1  H.  &,  J.  410  ;  Boring  j;..Lemmon,  5  H.  &  J.  223  ;  Barney  v.  Patterson,  6  H. 
&.  J.  204. 


DUVALL  V.  WATERS.  59 j 

the  security  of  purchasers,  describe  the  premises  with  precision ; 
but  it  is  enough  if  the  description  be  such  as  that  the  property  sold 
may  be  clearly  identified,  or  sufficiently  known  and  ascertained.  It 
is  not  necessary,  that  it  should  be  specified  with  technical  minute- 
ness. Thus  if  the  land  be  described  as,  "  one  tract  of  land  called 
Habitation  Rock  containing  360  acres  more  or  less,  situate  in 
North  Hundred,  Baltimore  county  ;"(c)  or  as  "  all  that  part  of  the 
tract  of  land  called  Charles  8f  Benjamin,  wdiich  was  devised  to 
E.  D.  B.  by  his  father  R.  B.  ;"(d)  or  by  a  particular  name,  as  "  a 
tract  of  land  called  Borough  Hall,  containing  the  supposed  quan- 
tity of  130  acres  of  land  more  or  less,"(e)  it  is  sufficient.  Because 
the  sheriff,  not  having  the  title  deeds  within  his  reach,  cannot  be 
presumed  to  have  it  in  his  power  to  give  a  more  particular  descrip- 
tion of  the  land  he  sells.  (/")  But  w^here  it  was  designated  by 
names  common  to  all  similar  property,  as  thus ;  "  to  dwelling- 
house,  gristmill,  sawmill,  and  fullingmill,  and  all  other  buildings 
belonging  thereunto,  with  one  hundred  acres  of  land  joining  the 
said  property,"  the  return  was  held  to  be  defective  for  want  of  a 
specification  :  [g)  and  so  too  where  the  return  described  the  land  as 
"part  of  Resurrection  Manor,  containing  251  acres  more  or  less  ;" 
it  was  held  to  be  void  for  uncertainty ;  because  there  was  nothing 
by  which  it  could  be  ascertained  whether  that  part  was  to  be  located 
on  the  north,  south,  east,  or  west,  of  the  whole  tract.  But  in  this 
latter  it  was  admitted,  that  the  return  would  have  been  good  if  it 
had  designated  a  whole  tract  by  any  distinct  name  or  description, 
such  as  a  tract  of  land  called  part  of  a  tract ;  and  not  as  a  tract  of 
land  being  part  of  a  tract  called  Resurrection  Manor. [h) 

According  to  these  decisions  and  principles  the  return  under 
consideration  must  be  deemed  sufficient  when  taken  either  alto- 
gether or  in  its  several  parts.  The  property  sold  is  described  as 
consisting  of  several  parcels  of  land.  First,  of  "  one  tract  of  land 
called  the  Pastures  enlarged^  About  this  there  can  be  no  doubt. 
Secondly,  of  "  one  tract  of  land  called  Osbourneh  lot  and  part  of 


(c)  Boring  v.  Lemmon,  5  II.  &.  J.  223.— ((Z)  Berry  v.  Griffith,  2  H.  &  G.  337. 
(e)  Thomas's  Lessee  v.  Turvey,  1  H.  &  G.  435.— (/)  Barney  v.  Patterson,  6  H.  & 
J.  204  ;  Scott  u.  Bruce,  2  H.  &  G.  2C2;  Beny  v.  Griffith,  2  H.  &  G.  337  ;  Underhill 
V.  Devereux,  2  Saund.  68  f.— (g)  Williamson  v.  Perkins,  1  H.  Sc  J.  449  ;  McElderry 
V.  Smith,  2  H.  &,  J.  72  ;  Fitzhugh  v.  Ilellen,  3  H.  &  J.  206.— (A)  Fenwick  v.  Floyd, 
1  H.  &  G.  172;  Purl's  Lessee  v.  Duvall,  5  H.  &  J.  69 ;  Waters  v.  Duvall, 
6G.  &.  J.  76. 


592  DUVALL  V.  WATERS.      , 

Pleasant  Qrove.^^  This  is  a  designation  of  one  entire  tract  of  land 
of  such  a  name ;  it  is  not,  as  seems  to  have  been  supposed,  a  sale 
of  an  uncertain  part  of  a  tract  of  land  called  "  Pleasant  Grove ;" 
and  therefore  the  description  of  this  parcel  also  is  sufficiently  cer- 
tain. Thirdly^  of  "one  tract  of  land  called  DuvalPs  Pleasure  or 
part  of  DuvalPs  Pleasure.''''  This  is  a  designation  of  one  whole 
tract  having  the  one  or  the  other  of  two  names,  and  is,  therefore,  a 
sufficient  description.  Fourthly^  of  "  one  tract  of  land  called 
Teukesbury  and  a  part  of  Teukesbury  and  Walker'' s  Delight. ^^  This 
description  also  clearly  refers  to  and  designates  one  parcel  of  land 
as  a  whole  and  not  as  a  part  of  a  tract.  And  lastly,  of  "  a  tract 
of  land  called  Friendship.''^  This  description  is  confessedly 
sufficient. 

Hence  it  clearly  follows,  that  as  this  return  is  sufficiently  descrip- 
tive in  its  several  parts,  it  must  be  so  considered  as  a  whole,  and 
when  taken  altogether.  Consequently  this  plaintiff,  who  has  been 
thus  returned  as  the  purchaser,  has  thereby  obtained  such  a  valid 
right  to  the  lands  held  by  the  defendant  JVathan  Waters,  as  entitles 
him  to  have  the  fraudulent  deeds  complained  of  set  aside  so  far  as 
they  at  all  interfere  with  his  claim. 

Whereupon  it  is  decreed,  that  the  said  deed  bearing  date  on  the 
17th  day  of  February  1824,  and  also  the  deed  bearing  date  on  the 
29th  day  of  August  1825,  and  the  records  thereof  be  and  the  same 
are  hereby  set  aside  and  declared  and  directed  to  be  held,  deemed 
and  taken  to  be  utterly  null  and  void  to  all  intents  and  purposes 
whatever,  so  far  as  the  same  may  interfere  with  or  in  any  manner 
affect  the  right  and  claim  of  the  said  plaintiff  Charles  Duvall,  unto 
the  several  parcels  of  land  specified  in  the  said  return  to  the  said 
w^it  of  fieri  facias,  by  which  it  appears  he  became  the  purchaser 
thereof  as  in  the  proceedings  mentioned. 


HILL  V.  BOWIE.  593 


HILL  V.  BOWIE. 

An  injunction  to  stay  waste  pending  an  action  at  law  is  in  natuveof  a  writ  of  esirepe- 
ment.  The  restriction  of  such  an  injunction  should  in  its  commencement  be 
coextensive  with  the  plaintiff's  pretensions  as  set  forth  here  or  in  his  suit  at  law. 
But  after  the  suit,  which  had  been  instituted  here  or  at  law  to  try  the  right,  has 
been  determined,  then,  according  to  the  nature  of  that  determination,  the  injunc- 
tion may  be  altogether  dissolved,  or  be  made  perpetual  only  to  the  extent  to  which 
the  plaintiff  has  recovered. 

This  bill  was  filed  on  the  14lh  of  December  1S26,  by  Morgan 
Hill  against  Daniel  Bowie.  It  states  that  the  plaintiff  was  in  pos- 
session of  a  part  of  a  tract  of  land  called  Grammar^ s  Chance^  to 
which  he  had  a  good  title  in  fee  simple ;  that  the  defendant  had 
committed  waste  upon  it  by  cutting  down  timber  trees ;  and  that 
he,  this  plaintiff,  had  brought  an  action  of  quare  clausum  f regit 
against  the  defendant  to  try  the  title  to  the  land  ;  which  action  was 
then  depending.  Whereupon  the  plaintiff  prayed  for  an  injunction 
to  stay  waste,  &c.     An  injunction  was  granted  as  prayed. 

The  defendant  put  in  his  answer,  in  which  he  admitted,  that  the 
plaintiff  was  entitled  to  a  certain  part  of  the  tract  of  land  as  stated ; 
but  he  averred,  that  a  part  of  the  same  tract  of  land  belonged  to 
his,  the  defendant's  wife,  the  boundaries  of  which  part  had  been 
well  ascertained  ;  and  the  defendant  denied,  that  he  had  committed 
any  waste  as  charged  by  the  bill. 

On  the  11th  of  September  1828  the  plaintiff  filed  a  supplemen- 
tal bill  in  which  he  alleged,  that  he  had  obtained  a  verdict  and 
judgment  in  his  action  of  trespass  ;  and  thereupon  prayed,  that 
the  injunction  might  be  made  perpetual. 

The  defendant,  by  his  answer  to  this  supplemental  bill,  admitted, 
that  the  plaintiff  had  recovered  a  judgment  as  stated  ;  but  averred, 
that  although  by  the  verdict  it  had  been  ascertained,  tliat  a  jjurt  of 
the  land,  on  which  it  appeared  the  defendant  had  trespassed,  was 
the  property  of  the  plaintill ;  yet  it  had  not  ascertained  the  claim 
and  pretensions  of  the  plaintiff'  to  be  as  extensive  as  in  las  bill  he 
!iad  supposed, 

2bth  February,  1829. — i3LAND,  Chancellor. — This  case  having 
been  submitted  on  bill  and  answer,  the  proceedings  were  read  and 
considered. 

An  injunction  of  this  description  is  in  the  nature,  and  in  all 
respects  performs  the  office  of  the  ancient  writ  of  estrepement.     It 

75 


594  HILL  V.  BOWIE. 

is  an  attendant  upon  the  action  at  common  law  ;  and,  as  its  inse- 
parable ally,  follows  its  fortunes,  and  must  submit  to  its  fate,  (a) 
The  restriction  of  this  kind  of  injunction,  in  its  commencement, 
must,  from  its  nature,  be  coextensive  with  the  pretensions  of  the 
plaintiff  as  made  in  his  bill  in  equity  and  action  at  common  law. 
But  if,  in  that  action,  the  plaintiff  fails  to  recover  entirely  accord- 
ino-  to  his  pretensions,  the  injunction  can  be  perpetuated  to  the 
extent  of  his  recovery  only  and  no  further ;  and  upon  the  same 
principle,  if  the  plaintiff  fails  in  his  action  at  law  altogether,  the 
injunction  must  be  totally  dissolved. 

In  this  case  it  does  not  distinctly  appear,  by  the  proceedings, 
how  far  the  plaintiff  has  failed  in  sustaining  his  pretensions  at  law. 
The  defendant  by  his  answer,  which  is  to  be  taken  for  tme  in  this 
mode  of  submitting  the  case  on  bill  and  answer,  avers  that  the 
judgment  at  law^  does  not  ascertain  the  plaintiff's  pretensions  to 
be  as  extensive  as  in  his  bill  it  would  appear  he  supposes.  Hence 
although  it  must  be  taken  for  true,  that  there  is  some  difference 
between  the  extent  of  the  plaintiff's  pretensions,  wdiich  he  asked 
to  have  protected  by  an  injunction,  and  his  actual  recovery,  yet 
that  difference  is  in  no  manner  designated  by  this  vague  allegation 
of  the  defendant,  or  by  any  thing  to  be  found  in  the  proceedings. 
If  the  unequivocal  extent  of  the  future  operation  of  this  injunction 
be  of  the  importance  tte  parties  now  seem  to  consider  it,  the  exact 
extent  of  the  plaintiff's  pretensions,  as  established  by  his  judgment 
at  law,  should  have  been  clearly  and  distinctly  shewn  to  this  court 
to  enable  it  to  limit  the  injunction  accordingly.  But  a  judgment 
in  the  general  terms  that  this  appears  to  be,  must,  without  some 
equally  authentic  evidence  to  the  contrary,  be  taken  as  sufficiently 
shewing,  that  the  injunction  should  continue  to  operate  to  the  full 
extent  of  its  original  scope. 

Whereupon  it  is  decreed,  that  the  injunction  heretofore  granted 
in  this  case  be  and  the  same  is  hereby  made  perpetual ;  and  that 
the  said  defendant  pay  unto  the  said  plaintiff  the  costs  of  this  suit 
to  be  taxed  by  the  register. 

(«)  Duvall  V.  Waters,  ante,  569. 


THE  CHANCELLOR'S  CASE.  595 


THE  CHANCELLOR'S  CASE. 

The  circumstances  and  causes  wliich  led  to  the  adoption  of  the  thirtietli  article  of  the 

Declaration  of  Rights  relative  to  judicial  independency.     The  manner  in  which 

the  several  provisions  of  that  article  were  introduced  and  established. 
A  salary  once  given  to,  or  which  has  become  legally  vested  in  a  Chancellor  or  judge 

cannot,  during  the  continuance  of  his  commission,  be  in  any  way  constitutionally 

withheld  or  diminished. 
The  General  Assembly  are  constitutionally  bound  to  give  a  salary  to  a  Chancellor  or 

Judge,  which  shall  be  secured  to  him  during  the  continuance  of  his  commission ; 

but  they  may,  by  temporary  appropriations,  or  in  any  other  form,  provide  for  the 

payment  of  such  a  salary. 

This  was  a  controversy  which  originated  between  the  House  of 
Delegates  and  the  Senate,  at  the  December  session  1824,  of  the 
General  Assembly  of  Maryland,  respecting  the  salary  of  the  Chan- 
cellor. No  charge  or  imputation,  of  any  kind  w^hatever,  was  made, 
by  either  house,  against  the  Chancellor ;  nor  does  it  appear,  that 
any  complaint  had  been  made,  to  either  house,  against  him,  by  any 
one ;  except  that  contained  in  a  petition  presented  by  Hugfi 
Thompson  to  the  Senate  without  any  previous  application  to  the 
Chancellor,  praying  to  be  permitted  to  appeal  from  an  order  which 
had  been  passed  by  the  Chancellor  on  the  12th  of  February  1825, 
in  the  case  of  McKim  v.  Thompson.  Although  the  Chancellor 
was  not,  in  any  way,  directly  made  a  party  to  this  controversy 
between  the  then  two  houses  of  the  General  Assembly  ;  or  notified 
by  either  house  of  its  existence  ;  yet  as  his  interests  were  deeply 
involved,  he  was  thereby  virtually  made  a  party ;  and  therefore,  at 
the  next  session  of  the  General  Assembly,  he  claimed  the  right  to 
appear,  to  defend  his  interests  and  to  maintain  his  constitutional 
independency.  Accordingly  he  presented  the  following  memorial, 
and  on  the  third  day  after  the  commencement  of  the  session  furnished 
each  member  with  a  printed  copy  thereof. 

By  a  note  to  the  case  of  McKim  v.  Thompson,  {ante,  111,)  the 
reader  has  been  referred  to  this  case.  The  mere  principles  of  law 
involved  in  that  case  can  have  no  bearing  upon  this.  In  those 
respects  the  two  cases  can  have  no  sort  of  connexion  with  each 
other.  But  on  an  attentive  consideration  of  the  various  move- 
ments in  the  December  session  of  1824,  of  the  General  Assembly, 
as  carefully  stated  in  the  following  memorial,  it  cannot  Aiil  to  be 
perceived,  that,  for  some  time  previous  to  the  passing  of  the  order 
of  the  12th  of  February  1825,  in  the  case  of  McKimr.  Thompson, 


596  THE  CHANCELLOR'S  CASE. 

and  at  that  time,  an  exceedingly  angry  excitement  prevailed  against 
the  Chancellor,  who  had  been  appointed  no  longer  than  the  month 
of  Au<yust  previous.  When  or  how  that  excitement  originated,  or 
of  its  authors,  or  causes,  there  can  be  no  occasion  here  to  take  any 
notice  whatever.  For,  in  the  consideration  of  great  constitutional 
principles,  it  is  proper,  that  we  should,  as  far  as  practicable,  put 
aside  all  personal  animosities,  jealousies,  and  griefs,  and  confine 
ourselves  to  the  examination  of  the  manner  in  which  the  case 
illustrates  the  bearing  of  those  great  principles.  It  is  therefore 
only  of  importance,  that  it  should  be  here  recollected,  as  a  matter 
of  history-,  that  such  an  excitement  did  then  prevail,  and  was  then 
in  active  operation,  when  Thompson,  by  his  petition,  complained  to 
the  Senate,  that  the  Chancellor's  order  of  the  12th  of  February 
1825  w^as  unjust,  and  prayed,  that  some  provision  should  be  made 
for  allowing  him  the  benefit  of  an  appeal.  It  is  in  these  respects 
only,  that  the  two  cases  have  a  connexion  and  association  with 
each  other ;  and  that  the  facts  and  circumstances  of  each  should 
be  recollected  and  taken  together  for  the  purpose  of  enabling  the 
citizen  to  form  a  correct  estimate  of  the  value  of  those  provisions 
of  our  constitution  which  declare,  "  that  the  legislative,  executive, 
and  judicial  powers  of  government,  ought  to  be  for  ever  separate 
and  distinct  from  each  other,"  and  "  that  the  independency  and 
uprightness  of  judges  are  essential  to  the  impartial  administration 
of  justice,  and  a  great  security  to  the  rights  and  liberties  of  the 
people." 

TO  THE  GENERAL  ASSEMBLY  OF  MARYLAND. 

The  Memorial  of  Theodorick  Blaxd,  Chancellor  of  Maryland, 
respecfully  represents, 

That  at  the  last  session  of  the  General  Assembly  of  Maryland, 
the  House  of  Delegates  asserted  the  right  to  reduce  the  salary  of 
the  Chancellor,  either  by  a  direct  enactment,  repealing  all  laws 
passed  since  the  year  1785,  which  had  made  provision  for  its  pay- 
ment ;  or  by  refusing  to  continue  the  appropriation  that  had  been 
made,  from  time  to  time,  for  that  purpose  during  the  last  six 
and  twenty  years.  This  assertion  of  right,  on  the  part  of  the 
House  of  Delegates,  was  opposed  by  the  Senate,  on  the  ground, 
that  when  the  present  Chancellor  came  into  office,  his  salary  having 
been  ascertained  by  law,  and  secured  to  him,  by  the  Declaration 
of  Rights,  during  the  continuance  of  his  commission,  the  legislature 


THE  CHANCELLOR'S  CASE.  597 

had  not  the  constitutional  power  to  reduce  that  salary  in  any  man- 
ner whatever,  during  tliat  period.  In  consequence  of  which  con- 
troversy between  the  two  branches  of  the  legislature,  the  Chancellor 
has  been  totally  deprived,  since  the  close  of  the  last  session,  of  the 
salary  which  had  been  thus  ascertained  and  secured  to  him  during 
the  continuance  of  his  commission. 

But,  however  ruinous  this  controversy  may  have  been,  and  may 
still  be  to  the  Chancellor  individually ;  yet,  when  contemplated  in 
all  its  bearings,  his  fate  becomes  a  matter  of  comparatively  minor 
consideration.  There  are  matters  involved  in  it,  vitally  affecting 
the  constitution,  and  the  safeguards  of  the  people's  rights,  of  infi- 
nitely greater  moment  than  the  mere  personal  wrongs  of  the  Chan- 
cellor. Its  great  importance  seems  to  require,  and  will  certainly 
excuse  the  giving  of  a  condensed  account  of  its  origin,  progress 
and  termination. 

It  had  been  the  uniform  practice  of  the  General  Assemby,  for 
about  twenty  years  past  to  pass  a  bill  at  each  session,  by  which 
it  was  enacted,  in  general  terms,  that  all  acts  which  would  then 
expire  should  be  continued  over  to  the  next  session.  This  had 
been  found  an  easy  and  safe  mode  of  continuing  all  acts  of  all 
descriptions,  not  intended  to  be  repealed  or  made  perpetual.  But, 
at  the  last  session,  the  subject  was  taken  up  with  more  apparent 
care,  by  a  bill  which  proposed  to  review,  and  to  continue  or  per- 
petuate each  temporary  act  by  name.  On  the  9th  day  of  Decem- 
ber, 1824,  soon  after  the  commencement  of  the  session,  it  was 
moved  in  the  House  of  Delegates,  that  a  committee  should  be 
appointed  to  inquire  what  laws  would  expire  with  that  session  ;(a) 
and  a  committee  was  accordingly  appointed  ;  who  on  the  14th  of 
the  same  month  reported  a  bill,  which,  on  the  17th,  was  ordered 
to  a  second  reading ;  that  is,  to  be  put  upon  its  passage,  on  the 
17th  of  the  next  month.  But,  on  the  same  day,  this  bill,  instead 
of  being  suffered  to  lie  over  to  the  appointed  time,  was  recom- 
mitted ;  and  did  not  again  make  its  appearance  in  the  house  until 
the  8th  of  February  following.  After  which,  it  was  suffered  to  lie 
upon  the  table  unnoticed  until  the  very  last  day  of  the  session. 


(a)  It  may  be  well  here,  once  for  all,  to  remark,  that  it  has  been  deemed  unne- 
cessary to  make  any  special  reference  to  the  journals  of  eiUier  house  for  what,  as  in 
this  instance,  is  stated  in  this  memorial  to  have  been  done  by  the  House  of  Dele- 
gates, or  by  the  Senate  ;  because  the  date  given  in  the  text  will,  in  every  instance, 
be  found  to  be  of  itself  a  sufficient  reference,  as  all  the  movements  of  the  two  houses 
are  placed  upon  their  respective  journals  in  chronological  order. 


598  THE  CHANCELLOR'S  CASE. 

when  it  was  called  up  to  a  second  reading ;  and,  while  on  its  pas- 
sage, it  was  proposed  to  insert  a  clause  continuing  the  act  of  1798, 
ch.  86,  which  made  provision  for  the  payment  of  the  Chancellor's 
salary ;  but  the  proposition  was  rejected,  and  the  bill  thus  passed 
and  sent  to  the  Senate.  This  bill,  proposing  to  continue  or  perpe- 
tuate each  temporary  act  by  name,  requiring  much  consideration, 
and  omitting  all  provision  for  the  payment  of  the  Chancellor's 
salary,  the  general  appropriation  for  which,  during  the  last  twenty- 
four  years  had  been  continued  or  renewed  by  each  continuing  act, 
was,  without  hesitation,  rejected  by  the  Senate. 

It  appears,  that,  on  the  14th  day  of  December  last,  an  order 
was  passed  by  the  House  of  Delegates,  calling  on  the  register  in 
chancery,  to  report  "  at  as  early  a  period  as  possible,  the  number 
of  cases  remaining  in  said  court  undetermined,  and  the  length  of 
time  they  have  remained  there  ;  also  the  number  of  cases  in  which 
the  papers  have  been  lost ;  and  the  number  of  decisions  made 
within  the  two  last  years,  ending  on  the  first  of  November,  1824." 
This  call  was  answered  on  the  20th  of  the  same  month.  On  the 
answer  being  read,  it  was  immediately  referred  to  the  committee 
of  grievances  and  courts-  of  justice  ;  which,  it  would  seem,  might 
have  been  considered  the  best  and  most  correct  disposition  that 
could  have  been  made  of  it :  but,  in  a  few  hours  after,  that  refer- 
ence was  reconsidered,  and  it  was  referred  to  a  select  committee. 

In  this  place  it  will  be  necessary  to  remark,  in  order  duly  to 
appreciate  what  followed,  that  by  the  standing  rules,  and  the  long 
established  usages  of  the  House  of  Delegates,  no  member  is 
allowed  to  introduce  any  bill,  upon  any  subject  whatever,  without 
having  first  obtained  leave ;  and  the  House  having  referred  that 
leave  to  a  committee  to  inquire,  to  digest  the  subject,  and  to  report 
accordingly — and  in  cases  when  a  petition  or  memorial  is  presented 
to  the  House,  or  a  communication  is  made  to  it,  such  petition, 
memorial,  or  communication  may  be,  and  most  usually  is,  as  a 
matter  of  course,  referred  to  a  committee  with  leave  to  report  by 
bill,  or  otherwise.  But,  in  such  case,  the  bill  reported  must  have 
a  direct,  and  immediate  relation  to  the  subject  referred  to  the  com- 
mittee. These  two  are  the  only  modes  by  which  any  bill  can  be 
brought  into  the  house. 

It  does  not  appear,  from  the  votes  and  proceedings,  what  the 
register  did  say  to  the  House  ;  but  it  is  difficult  to  comprehend  how 
any  thing  which  he  could  have  said,  in  answer  to  the  questions 
the  House  had  propounded  to  him,  could  warrant  this  special  com- 


THE  CHANCELLOR'S  CASE.  599 

mittee  in  reporting  a  bill  to  alter  and  abolish  a  most  important  part: 
of  the  constitution  ;  and,  also,  in  reporting  a  bill  for  the  purpose 
of  reducing  the  Chancellor's  salary  below  what  had  been  constitu- 
tionally secured  to  the  Chancellor  for  the  time  being,  for  the  last 
two-and-thirty  years.  But  so  it  was  :  this  committee  to  whom  the 
register's  communication  was  referred,  found  it  perfectly  applicable 
to  these  subjects,  and  pregnant  with  both  of  those  very  important 
bills.  And,  accordingly,  on  the  21st  of  January,  seemingly  as  a 
report  in  part,  they  introduced  the  bill  proposing  to  abolish  the 
office  of  Chancellor ;  and  on  the  next  day  they  made  a  further 
report,  by  presenting  the  bill,  by  which  it  was  intended  to  assert 
and  establish  the  right  to  cut  down  the  Chancellor's  salary  at 
pleasure. 

The  first  of  these  bills  was  expressed  in  these  words  :  "  An  act 
to  repeal  all  such  parts  of  the  constitution  and  form  of  government, 
as  relate  to  the  appointment  of  a  Chancellor. — Be  it  enacted  by  the 
General  Assembly  of  Maryland^  That  all  those  parts  of  the  consti- 
tution and  form  of  government,  which  require  the  appointment  of 
a  Chancellor  be,  and  the  same  are  hereby  repealed."  This  is  the 
whole  of  it.  There  was  no  clause  directing  the  publication  of  it 
for  the  purpose  of  apprizing  the  people,  that  it  was  intended  to 
take  eflfect  as  an  alteration  of  the  constitution  ;  without  which  it 
could  never  operate  as  such ;  and  without  which  no  bill  intended 
as  an  alteration  of  the  constitution  had  ever  before  been  reported  or 
passed. 

It  is  no  where  said,  or  intimated,  whether  the  ultimate  object 
of  this  bill  was  to  expunge  from  our  code  the  whole  of  the  princi- 
ples of  equity  or  not ;  or  whether  it  was  intended  to  have  no  sepa- 
rate court  of  chancery  ;  or  to  have  such  courts,  but  no  Chancellor ; 
or  where  or  how  those  powers  and  duties,  now  held  and  discharged 
by  the  Chancellor,  were  to  be  deposited  and  administered.  The 
first  sections  of  the  act  of  1804,  ch.  55,  framed  the  present  six 
judicial  districts  ;  and  then  the  same  act  declared  that  the  General 
Court  should  be  abolished.  The  act  which  destroyed  the  General 
Court  began  by  providing  an  ample  substitute.  But  by  this  act,  for 
abolishing  the  office  of  Chancellor,  there  would  have  been  an  effect- 
ual pulling  down ;  but  no  building  up  of  any  kind  whatever. 

On  contemplating  this  short  bill  many  inquiries  suggest  them- 
selves ;  as,  whether  it  would  be  expedient  to  eradicate  from  our 
code  every  principle  of  equity  or  not  ?  whether,  if  those  principles 
are  to  remain,  they  can  be  administered  easier,  more  speedily,  and 


600  THE  CHANCELLOR'S  CASE. 

cheaper  than  they  are  at  present  ?  whether  it  would  be  better,  and 
cheaper  to  have  six,  or  eight  chancellors  than  one  chancellor? 
The  late  General  Court  was  deemed  a  giievance  and  abolished ; 
because,  at  great  expense  and  inconvenience,  it  dragged  witnesses 
and  jurymen  from  all  parts  of  the  State  to  the  seat  of  government. 
But  the  Court  of  Chancery,  like  the  Court  of  Appeals,  does  not 
call  for  witnesses  or  jurymen  from  any  part  of  the  State.  It  brings 
before  it  nothing  but  the  record,  documents,  and  papers  belonging 
to  the  case.  The  lawyers  may  attend  in  person,  or  they  may  send 
their  arguments  in  writing.  These  are  some  of  the  thoughts  sug- 
gested by  this  bill,  on  w^hich  reflections  might  be  carried  out  to  a 
considerable  extent. 

This  bill  to  abolish  the  office  of  chancellor  was  appointed  to  be 
read  a  second  time  on  the  28th  of  the  same  month  on  which  it  was 
brought  into  the  House ;  but,  from  some  cause  or  other,  it  was 
unattended  to  on  that  day,  and  was  not  called  up  until  the  Monday 
forenoon  of  the  7th  of  February,  when  it  was  passed,  apparently, 
as  a  matter  of  course,  without  debate,  by  a  vote  of  33  to  23,  and 
sent  to  the  Senate — in  which  house,  on  the  9th  of  the  same  month, 
it  was  taken  up  and  read  a  second  and  third  time,  hy  a  special 
order,  and  rejected.  Upon  the  whole,  then,  on  considering  this 
first  one  of  the  suggestions  which  originated  from  the  commu- 
nication of  the  register  in  chancery,  it  would  seem  not  to  have 
been  intended  as  a  regular  attack,  but  as  a  mere  demonstra- 
tion, as  nothing  more  than  a  sort  of  preparatory  feeling  of  the 
antagonist. 

The  second  bill  from  this  committee,  by  which  it  was  intended 
to  7'educe  the  salary  of  the  Chancellor,  was  entitled,  "  An  act  to 
ascertain  and  fix  the  salary  of  the  Chancellor."  The  place  in 
which  it  was  intended  to  express  the  amount  of  the  salary  was, 
as  is  usual  in  like  cases,  left  blank,  to  be  filled  up  on  the  second 
reading  ;  and  consequently,  there  was  nothing  on  the  face  of  it,  as 
reported,  W'hich  involved  any  constitutional  question  ;  or  which 
intimated,  that  such  a  one  was  to  be  propounded.  This  bill  was 
ordered  to  be  put  on  its  passage,  on  the  first  day  of  February  fol- 
lowing ;  but,  that  day  w\is  suffered  to  pass  by,  and  it  was  not 
called  up  until  the  21st  of  February;  when,  by  a  vote  of  36  to  26 
the  blank  was  filled  up  with  "  the  sum  of  tioenty-two  hundred  dol- 
lars,^'' as  the  amount  of  the  Chancellor's  salary,  and  the  bill  was 
thus  passed,  and  sent  to  the  Senate. 

It  will  be  proper  here  to  recollect,  that  when  the  present  Chan- 


THE  CHANCELLOR'S  CASE.  601 

cej]or  was  appointed,  his  salary,  by  the  act  of  1798,  ch.  86,  then, 
at  least,  undeniably  in  force,  was  fixed  at  the  sum  of  thirty-four 
hundred  dollars  per  annum ;  and  that  the  act  of  1792,  ch.  76,  had, 
previously  to  the  year  1798,  fixed  the  Chancellor's  salary  at  the 
sum  of  twenty-Jive  hundred  and  thirty-three  dollars  and  thirty-three 
cents  ;  and,  consequently,  by  the  passage  of  this  bill,  the  House 
of  Delegates,  practically  asserted  the  power,  at  once,  to  reduce  the 
Chancellor's  salary  below  what  had  been  secured  to  the  several 
Chancellors  during  the  continuance  of  their  commissions  for  the 
last  thirty-two  years. 

The  Senate  conceiving  the  reduction  of  the  Chancellor's  salary, 
in  any  form,  to  be  a  direct  violation  of  the  thirtieth  article  of  the 
Declaration  of  Rights,  took  up  this  bill,  on  the  23d  of  the  same 
month,  and  rejected  it  "  unanimously.^''  Thus,  at  this  late  day  of 
the  session,  this  great  constitutional  question,  relative  to  the  security 
of  judicial  salaries,  was,  for  the  first  time,  fully  and  openly  pre- 
sented to  the  Assembly;  and  the  two  Houses  were  fairly  at  issue. 

On  the  25th  day  of  February,  the  Delegates  passed  the  civil  list 
bill,  in  which  they  reduced  the  Chancellor's  salary  to  twenty-Jive 
hundred  and  thirtrj-four  dollars.  This  was  rejected  by  the  Senate 
on  the  same  ground  of  its  being  an  unconstitutional  reduction.  As 
has  been  stated,  the  long  special  continuing  act,  omitting  to  con- 
tinue the  appropriation  for  the  payment  of  the  Chancellor's  salary, 
having  been  passed  by  the  Delegates,  and  sent  to  the  Senate  on  the 
26th  of  February,  the  very  last  day  of  the  session,  was,  by  that 
body,  read  and  rejected  at  once.  On  the  same  last  day,  the  Dele- 
gates passed  a  resolution  directing,  that  the  Chancellor  should  be 
paid  the  sum  of  twenty-Jive  hundred  and  thirty-three  dollars  and 
thirty-three  cents  and  one-third  of  a  cent,  "  as  a  compensation  for 
his  services  during  the  present  year.''''  This  was  a  twofold  reduc- 
tion ;  it  was  less  in  amount  than  the  existing  salary,  and  shorter  in 
time  than  during  the  continuance  of  his  commission.  It  was 
doubly  objectionable  ;  and,  was  therefore  rejected  by  the  Senate 
without  hesitation. — The  Delegates  then,  immediately  introduced 
and  passed  a  bill  continuing  all  acts,  in  general  terms,  which  would 
expire  with  that  session,  except  the  act  of  1798,  ch.  86,  and  also 
except  the  act  of  1797,  ch.  71  ;  which  bill  the  Senate,  after  much 
hesitation,  consented  to  pass. 

On  the  26th  of  February,  the  Senate  sent  the  following  message 
to  the  delegates.  "  Gentlemen  of  tiie  House  oj^  Delegates.  The 
Senate  have  again  rejected  the  bill  entitled,  An  act  to  pay  the  civil 

76 


(302  THE  CHANCELLOR'S  CASE. 

list  and  other  expenses  of  civil  government,  and  also  the  resolution 
relative  to  the  Chancellor's  salary.  We  dissented  from  this  bill 
yesterday,  because  the  salary  provided  for  the  Chancellor  was  in 
our  opinion,  insufficient,  and  because  we  considered  it  a  violation  of 
the  spirit  and  intention  of  the  constitution  and  hill  of  rights.  It  is 
known  to  your  honourable  body,  that  but  a  few  days  ago,  the 
Senate  ttnanimously  rejected  the  bill  from  your  house  to  reduce  the 
salary  of  the  Chancellor,  and  to-day,  at  tJie  very  moment  we  are 
about  closing  the  session,  when  many  of  our  members  are  absent, 
w^ho  are  known  to  have  been  opposed  to  any  reduction  of  the 
salary  of  that  officer,  we  are  presented  with  another  bill  from  your 
house,  in  which  you  have  thought  proper  to  make  no  provision  to 
pay  the  Chancellor  any  salary  whatever.  If  your  honourable  body 
will  send  us  a  bill  to  continue  in  force  the  act  entitled  a  supplement 
to  the  act,  entitled^  An  act  for  establishing  and  securing  the  salary 
of  the  Chancellor,  we  will  at  once  pass  the  civil  list  bill ;  other- 
wise we  cannot,  under  any  circumstances  whatever,  consent  to  that 
bill.  The  Senate  regret  the  difference  of  opinion  that  has  arisen 
between  the  two  houses  in  relation  to  this  matter ;  but  they  owe  it 
to  themselves,  and  to  the  people  of  Maryland,  after  the  repeated 
expressions  of  their  opinion  on  this  subject,  to  adhere  to  the  course 
they  have  taken."  This  message  expresses  concisely  the  opinions 
of  the  Senate  upon  this  subject. 

On  the  same  day  the  Delegates  returned  the  general  continuing 
act  to  the  Senate  for  their  reconsideration,  with  the  following  mes- 
sage:— ^^  Gentlemen  of  the  Senate — We  find  ourselves  driven  to 
the  painful  necessity  of  dissenting  from  the  amendment  to  the  con- 
tinuing act  proposed  by  your  honourable  body.  We  chJiceive,  that 
we  cannot,  in  conscience,  longer  continue  to  the  Chancellor  the  pro- 
fuse and  enormous  salary  2vhich  he  now  enjoys  ;  we  conceive  that 
duty  requires  us  to  reduce  it,  and  that  there  is  nothing  in  our  decla- 
ration of  rights  or  constitution  to  inhibit  it.  What  we  have  already 
refused  to  do  directly,  by  at  least  four  or  five  different  votes  of  this 
House,  we  cannot  consent  to  do  indirectly ;  we  stand  pledged  to 
our  consciences  to  maintain  in  every  constitutional  way,  the  ground 
we  have  occupied.  We  regret  that  this  proposition  has  been  so 
often  coupled  by  your  house  with  acts  or  propositions  of  a  wholly 
different  character,  and  in  no  wise  dependent  upon  it.  If  your 
House  has  resolved  to  reject  every  continuing  act,  unless  it  also 
continues  the  acts  giving  the  Chancellor  his  present  salary ;  and 
that  the  whole  of  the  temporary  laws  of  our  State,  some  of  which 


THE  CHANCELLOR'S  CASE.  603 

are  of  a  highly  important  character,  shall  be  set  afloat,  because 
your  wishes  in  regard  to  the  Chancellor's  salary  cannot  be  grati- 
fied ;  we  must  lament  that  you  have  adopted  what  to  us  seems  an 
extraordinary  principle,  that  the  wheels  of  government  shall  stand 
still  for  the  sake  of  a  single  individual.  It  seems  to  us  to  amount 
to  a  declaration,  that  you  are  determined  not  to  concur  with  us  in 
doing  acts  which  both  of  us  admit  to  be  right  and  proper,  because 
of  a  difference  of  opinion  as  to  other  acts  of  a  wholly  different 
character ;  we  cannot  be  deterred  from  doing  what  we  believe  to 
be  right,  lest  injurious  consequences  might  result  from  it.  With 
us,  the  rule  has  been  adopted  and  adhered  to  in  this  instance,  that 
we  must  pursue  the  right,  so  far  as  we  can  ascertain  it,  and  if  per- 
nicious consequences  flow  from  it,  we  must  leave  it  to  the  people 
of  this  State  to  determine  whether  it  is  the  consequence  of  our 
acts,  or  of  your  opposition  to  them.  We  therefore  again  return  to 
you  the  general  continuing  act,  in  the  hope  that  you  will  reconsider 
and  pass  it  in  its  original  form  with  its  excepting  clauses^ 

Late  in  the  evening  of  the  same  day,  the  last  one  of  the  ses- 
sion, the  Senate  assented  to  the  general  continuing  act  in  the  form 
in  which  it  had  been  sent  to  them  by  the  Delegates,  with  the  fol- 
lowing message  explanatory  of  their  considerations  and  motives. 
*'  Gentlemen  of  the  House  of  Delegates — The  Senate  have  again 
received  the  bill  entitled  an  act  to  continue  in  force  the  acts  of 
Assembly  which  would  expire  with  the  present  session,  and  also 
your  accompanying  message.  The  sentiments  of  the  Senate  have 
undergone  no  change  in  regard  to  the  subject  in  controversy 
between  your  honourable  body  and  themselves,  but  actuated  alone 
by  a  desire  to  terminate  the  session,  which  has  been  already  too 
long  protracted,  they  have  passed  the  said  bill ;  content  to  leave 
the  decision  of  tlie  question  to  the  people  of  JIaryland." 

The  Delegates,  as  will  be  seen  by  their  vote  of  the  21st  of  Feb- 
ruary, passing  the  bill  to  reduce  the  Chancellor's  salary  to  twenty- 
two  hundred  dollars,  could  not  have  rested  their  pretensions  upon 
any  distinction  between  the  act  of  1798  and  1792 ;  or  upon  any 
notion  about  the  temporary  nature  of  the  one  act,  and  the  perma- 
nent character  of  the  other  ;  because,  the  salary  awarded  to  the  Chan- 
cellor, by  that  vote,  Avas.much  less  than  had  been  allowed  to  him  by 
either  of  those  acts.  And  the  resolution  which  they  passed  and 
offered  to  the  Senate  for  fixing  the  Chancellor's  salary  at  "  tlie  sum 
of  tioenty-five  hundred  and  thirty^three  dollars  and  thirty-three  cents 
<tnd  one-third  of  a  cent,  as  a  compensation  for  his  services  during 


604  "^  THE  CHANCELLOR'S  CASE. 

the  j}rese7it  year ;''''  without  any  reference  to  any  antecedent  law, 
clearly  shows,  that  they  held  the  Chancellor's  salary  to  be  reducible 
at  their  ])leasure. 

But,  if  those  acts  leave  any  doubt  upon  the  mind  as  to  the 
meanin""  and  intention  of  the  Delegates,  that  doubt  must  be  com- 
pletely removed  by  an  attentive  perusal  of  their,  before  recited, 
messao-e  of  the  26th  of  February,  returning  the  general  continuing 
act.  In  that  message  there  is  no  such  thought  expressed  as,  that 
they  could  not  constitutionally  repeal  a  permanent  act,  fixing  the 
Chancellor's  salary :  it  is  not  there  even  intimated,  that  they  only 
found  themselves  at  liberty  to  reduce  that  salary,  because  it  was 
given  by  the  act  of  1798,  which  act  they  believed  to  be  temporary  ; 
nor  is  it  to  be  inferred,  from  any  thing  said  or  done  by  the  Dele- 
gates, as  recorded,  that  they  understood,  that  if  the  act  of  1798 
were  suffered  to  expire,  the  act  of  1792  would  be  virtually  revived  ; 
and  that  it  was  their  intention,  in  that  way,  to  reduce  the  Chancellor's 
salary^  On  the  contrary,  the  Senate  having  complained,  in  their 
message  of  the  26th  of  February,  that  "  at  the  very  moment  they 
w^re  about  closing  the  session,  when  many  of  their  members  were 
absent  wdio  were  known  to  have  been  opposed  to  any  reduction  of 
the  salary  of  that  officer,  they  were  presented  with  another  bill 
from  the  Delegates,  in  which  they  had  thought  proper  to  make  no 
provision  to  pay  the  Chancellor  any  salary  whatever.^^  The  Dele- 
gates, in  opposition  to  the  Senate,  broadly  and  boldly,  without 
qualification,  or  restriction,  in  their  message  of  the  same  day,  say, 
"  we  conceive  that  we  cannot  in  conscience,  longer  continue  to  the 
Chancellor  the  profuse  and  enormous  salary  which  he  now  enjoys  ; 
we  conceive,  that  duty  requires  us  to  reduce  it,  and  that  there  is 
notlnng  in  our  declaratioii  oj"  rights  or  constitution  to  inhibit  it^ 

Hence,  it  is  most  manifest,  that  the  Delegates  asserted  and 
maintained  the  absolute  right  to  cut  down  the  Chancellor's  salary 
at  their  ])lcasure,  without  limitation  or  restriction.  And,  rather 
than  be  disappointed  in  the  exercise  of  that  asserted  right,  they 
determined  to  close  the  session  without  making  any  provision 
whatever  for  the  payment  of  the  Chancellor's  salary.  On  the  other 
liand,  the  Senate  planted  themselves  upon  the  constitutional  ground, 
that  the  salary  given  to  the  Chancellor  by  the  act  of  1798,  ch.  86, 
was,  by  the  Declaration  of  Rights,  secured  to  him  during  the  con- 
tinuance of  his  commission  ;  and,  during  that  period  could  not  be 
touched. 

How  it  happened  that  so  great  a  question  as  this,  relative  to 


THE  CHANCELLOR'S  CASE.  *^-  605 

the  constitutional  right  of  the  General  Assembly  to  reduce,  or  to 
withhold,  at  pleasure,  the  salary  of  the  Chancellor,  should  have 
been  so  postponed,  so  crowded  into  the  very  last  day,  and  thrown 
in  among  the  fragments  and  leavings  of  a  long  and  laborious  ses- 
sion, does  not  very  clearly  appear.  But  such  was  the  fact.  The 
special  continuing  act ;  the  civil  list  bill ;  the  general  continuing 
act;  the  separate  act  and  separate  resolution  for  reducing  the 
Chancellor's  salary  ;  in  short,  every  act  in  any^  way  touching  upon, 
or  exclusively  embracing  the  subject  was,  by  some  unlucky  mis- 
chance, huddled  together  at  the  close  of  the  session,  in  a  manner 
exceedingly  unfriendly  to  calm  deliberation  and  sound  constitu- 
tional legislation  upon  a  matter  so  vitally  important. 

These  considerations,  and  the  deep  interest  which  the  Chancellor 
has  in  having  this  great  constitutional  question  fully  determined, 
after  the  most  mature  deliberation,  have  induced  him  to  embrace 
the  earliest  opportunity  of  laying  before  the  General  Assembly  all 
those  circumstances  and  arguments  which  might,  in  any  manner, 
be  likely  to  aid  them  in  coming  to  a  correct  conclusion.  The 
Chancellor  is  perfectly  confident,  that  his  case,  so  far  as  it  respects 
himself  only,  will  be  heard  and  investigated  with  as  much  care, 
and  as  impartial  a  disposition  to  do  him  justice,  as  would  be 
bestowed  upon  that  of  any  other  of  the  citizens  of  Maryland.  But 
upon  this  occasion,  from  the  peculiar  and  important  nature  of  his 
case,  he  respectfully  asks  and  hopes  for  more.  He  flatters  himself, 
that  every  member  of  the  General  Assembly  will  bestow  upon  it 
that  close  attention  which  its  important  bearing  upon  the  inde- 
pendency of  the  judiciary,  upon  the  separation  of  the  departments 
of  government,  and  the  great  interests  of  the  people  so  very 
strongly  require. (6) 

(6)  The  injustice  done  to  an  individual  is  someiimes  of  service  to  the  public. 
Facts  are  apt  to  alarm  us  more  than  the  most  dangerous  principles,  {Junim,  Let.41.) 
The  oppression  of  an  obscure  individual  gave  birth  to  the  famous  habeas  coi-pus  act, 
31  Car.  2,  c.  2,  which  is  frequently  considered  as  another  mapia  charta,  (3  Blue. 
Com.  13G.)  In  speaking  of  constitutional  law,  we,  in  this  countiy,  always  refer  to 
our  written  constitutions,  or  fundamental  laws  paramount  to  legislative  acts.  This 
is  a  distinction  which,  as  it  has  been  truly  said,  is  not  liicely  to  last  long  in 
States  where  the  power  of  the  legislature,  like  that  of  the  British  parliament,  is 
omnipotent,  ( Coop.  Jm^t.  404.)  In  Maryland  the  great  facility  with  which  the  con- 
stitution may  be  altered  gives  to  the  General  Assembly  almost  unlimited  power 
in  all  respects  ;  and  particularly  over  the  executive  and  judicial  departments  of  the 
government;  and  produces  too  general  an  inditferenee  to  the  existing  provisions  of 
the  constitution. 
^        In  the  Virginia  convention  of  1829  it  was  moved,  that  a  clause  should  be  inserted 


606  THE  CHANCELLOR'S  CASE. 

It  seems,  that  the  formation  of  the  government  of  our  country, 
like  that  of  England,  has  not  been  so  much  the  result  of  profound 
political  research  as  of  happy  coincidences  :  if  much  is  to  be  attri- 
buted to  patriotism,  to  virtue,  and  to  wisdom,  still  more  must  be 
conceded  to  fortune,  and  a  favourable  concurrence  of  circumstances. 
The  Eno-lish  American  colonists  claimed  the  benefit  of  the  whole 
of  the  English  code  of  laws ;  and  especially  those  parts  intended 
for  the  preservation  of  the  rights  and  liberties  of  the  citizen ;  and 
they  adopted,  in  substance,  the  English  system  of  government.  In 
this  general  translation  and  adoption,  some  parts  of  the  code  were 
improved,  others  neglected ;  and  portions  of  the  system  of  govern- 
ment were  better  here ;  others  not  so  good  as  in  England.  The 
representation  of  the  people,  in  the  popular  branch  of  the  colonial 
legislatures,  was  every  where  more  equal  and  better  than  that  of 

in  the  new  constitution  providing  "  a  mode  in  which  future  amendments  shall  be 
made  therein,"  upon  which  John  Randolph,  among  other  things,  said, 

"I  do  not  know  a  greater  calamity  that  can  happen  to  any  nation,  tlian  having  the 
foundations  of  its  government  unsettled.  It  would  seem  as  if  we  were  endeavouring 
to  corrupt  the  people  at  the  fountain  head.  ^  Sir,  the  great  opprobrium  of  popular 
government,  is  its  instability.  It  was  this  which  made  the  people  of  our  Anglo- 
Saxon  stock  cling  with  such  pertinacity  to  an  independent  judiciary,  as  the  only 
means  they  could  find  to  resist  this  vice  of  popular  government.  By  such  a  provision 
as  this,  we  are  now  inviting,  and  in  a  manner  prompting  the  people,  to  be  dissatisfied 
with  their  government.  Sir,  there  is  no  need  of  this.  Dissatisfaction  will  come 
soon  enough.  I  foretell,  and  with  a  confidence  surpassed  by  none  I  ever  felt  on  any 
occasion,  that  those  who  have  been  most  anxious  to  destroy  the  constitution  of  Vir- 
ginia, and  to  substitute  in  its  place  this  thing,  will  not  be  more  dissatisfied  now  with 
the  result  of  our  labours,  than  this  new  constitution  will  very  shortly  be  opposed  by 
all  the  people  of  the  State.  Sir,  T  see  no  wisdom  in  making  this  provision  for  future 
changes.  You  must  give  governments  time  to  operate  on  the  people,  and  give  the 
people  time  to  become  gradually  assimilated  to  tlieir  institutions.  Almost  any  thing 
is  better  than  this  state  of  perpetual  imcertainty.  A  people  may  have  the  best  form 
of  government  that  the  wit  of  man  ever  devised  ;  and  yet,  from  its  uncertainty  alone, 
may,  in  effect,  live  under  the  worst  government  in  the  world.  I  will  do  nothing  to 
provide  for  change.  I  will  not  agree  to  any  rule  of  future  apporlionment,  or  to  any 
provision  lor  future  changes  called  amendments  to  the  Constitution.  They  who  love 
change — who  delight  in  public  confusion — who  wish  to  feed  the  cauldron  and  make 
it  bubble — may  vote  if  they  please  for  future  changes.  But  by  what  spell — by  what 
formula  are  you  going  to  bind  the  people  to  all  future  time  ?  Quis  cusiudiet  custodes  ? 
The  days  of  Lycurgus  are  gone  by,  when  he  could  swear  the  people  not  to  alter  tlie 
Constitution  until  he  should  return  animo  non  revertcndi.  I  have  no  favour  for  this 
Constitution.  I  shall  vote  against  its  adoption,  and  1  shall  advise  all  the  people  of 
my  district  to  set  their  faces — aye — and  their  shoulders  against  it.  But  if  we  are  to 
have  it — let  us  not  have  it  with  its  death  warrant  in  its  very  face  :  with  the  fades 
hjpocratica — the  sardonic  grin  of  death  upon  its  countenance." 

The  question  on  the  proposition  to  insert  a  clause  providing  for  future  amend- 
ments was  then  immediately  taken  and  decided  in  the  negative,  ayes,  twenty-five, 
noes,  sixty-eight.— {Debates  Virg.  Con.  of  1^29,  page  735).) 


THE  CHANCELLOR'S  CASE.  g07 

the  people  of  England  in  the  House  of  Commons  of  their  parlia- 
ment.(c) 

But  the  judicial  department,  in  all  the  colonies,  was  poorly  and 
badly  organized.  Yet,  for  the  most  part,  it  was  so  composed  of 
justices,  requiring  the  concurrence  of  juries,  as  to  sympathize 
immediately  with  the  people  ;  and  to  act,  most  generally,  accord- 
ing to  the  interests  of  the  colonists,  regardless  of  those  of  the 
mother  country.  After  an  angry  struggle  of  many  years  it  had 
been  found,  that  the  mere  appellate  poiver  of  the  king  in  council, 
which  had  been  established  from  the  very  beginning,  was  not  alone 
sufficient,  so  to  control  the  colonial  tribunals,  as  to  induce  them  to 
execute  the  acts  of  navigation  and  trade.  Accordingly,  for  the 
purpose  of  affording  judicial  protection  to  the  interests  of  the 
mother  country  in  the  colonies,  courts  of  vice-admiralty,  with 
jurisdiction  over  each  colony,  were  finally  established  about  the 
year  1700 ;  by  whose  powers  the  acts  of  trade  were  punctually 
executed.  The  judges  of  these  courts  were  appointed  and  paid  by 
the  king  during  pleasure  ;  and,  were  besides  allowed  sundry  fees 
and  perquisites  of  office.  When  England  attempted  to  lay  inter- 
nal taxes  upon  the  colonies,  jurisdiction  in  cases  arising  under  the 
laws  passed  for  that  purpose  was  given  to  those  admiralty  tribunals, 
in  like  manner  as  had  been  done  in  cases  of  external  revenue,  (c?) 


(c)  "  The  whole  fahric  of  English  liberty  rose  step  by  step,  through  much  toil,  and 
many  sacrifices  ;  each  generation  adding  some  new  security  to  the  work,  and  trust- 
ing that  posterity  would  perfect  the  labour  as  well  as  enjoy  the  reward.  A  time  per- 
haps was  even  then  foreseen,  in  the  visions  of  generous  hope,  by  tlie  brave  knights 
of  parliament,  and  by  the  sober  sages  of  justice,  when  the  proudest  ministers  of  the 
crown  should  recoil  from  those  barriers,  which  were  then  pushed  aside  with  impu- 
nity."—(2  Hal.  Mid.  Ages,  179,  Phil,  edit.) 

(d)  The  navigation  acts,  first  introduced,  in  the  year  1651  by  the  famous  Long 
Parliament,  with  the  intention  of  securing  to  England  a  monopoly  of  the  trade  of 
her  colonies,  (3  Godw.  Com.  Eng.  3S2  ;  1  Blac.  Com.  418  ;  Pown.Adm.  Colo.  123, 
Ath  edition,  176S  ;)  being  very  injurious  to  their  interests  were  warmly  opposed  by 
them  ;  insomuch  so,  that  those  laws  remained  almost  as  a  dead  letter,  {Poicn.  Adm. 
Colo.  109,)  until,  with  a  view  to  sustain  the  supremacy  and  monopoly  of  the  mother 
country,  a  statute  was  passed  in  the  year  1696,  (7  (§r  8  W.  3,  c.  22,  s.  7,)  sanction- 
ing the  establishment  of  vice-admiralty  courts  in  tlie  colonies ;  which  tribunals, 
although  some  extensions  of  their  jurisdiction  were  for  a  time  disputed,  it  seems  to 
have  been  finally  admitted,  about  the  year  1700,  might  lawfully  take  cognizance  of 
all  cases  arising  under  the  statutes  passed  by  the  parliament  of  England  for  the  regu- 
lation of  the  external  trade  of  this  country,  (2  Chal.  Opin.  Em.  Law,  187,  193 ; 
2  Hutch.  His.  3Iass.  74,  78.) 

Before  the  revolution  commenced  there  had  been  established  a  vice-admiralty 
court  for  New  Hampshire  ;  another  for  Massachusetts  and  Rhode  Island,  ( Chal.  Pol. 


608  THE  CHANCELLOR'S  CASE. 

To  oppose  this  attempt  to  lay  internal  taxes  upon  America,  a 
colonial  Congress  was  convened  at  New  York,  on  the  7th  of  Octo- 

An.  282;  2  Chal.  Opin.  Em.  Law,  208 ;)  a  third  for  Connecticut,  New  York,  and 
New  Jersey,  (1  Smith's  His.  N.  York,  383;)  a  fourth  for  Pennsylvania  and  Dela- 
ware, (2  Chal.  Opin.  Em.  Law,  190;)  a  fifth  for  Maryland,  (1715,  ch.  48,  s.  7; 
1763,  ch.  18,  s.  97  «^  98 ;  Kilt.  Rep.  163  ;)  a  sixth  for  Virginia,  (3  Virg.  Stat.  178  ;) 
a  seventh  for  North  Carolina,  (1  Chal.  Opin.  Em.  Law,  278;)  an  eighth  for  South 
Carolina,  (6  State  Trials,  157,)  and  a  ninth  for  Georgia,  (Stokes'  View  Brit.  Col.  135.) 
These  vice-admiralty  courts  were  not  only  invested  with  authority  to  take  cogni- 
zance of  the  ordinary  instance  and  prise  cases ;  but  also  with  jurisdiction,  according 
to  the  course  of  admiralty  proceeding,  witliout  a  jury,  in  all  revenue  cases ;  and  of 
all  prosecutions  for  the  breach  of  the  laws  of  navigation  and  trade  ;  and  also  of  the 
statutes  for  the  preservation  of  pine  trees  for  the  use  of  the  navy,  (2  Hutch.  His. 
Mass.  228;  Pown.  Adm.  Colo.  312;  1  Chal.  Opin.  Em.  Law,  111,  119;  9  Anne, 
c.  17;  8  Geo.  1,  c.  12,  4"  2  Geo.  2,  c.  35.)  The  colonists  insisted,  that  their  superior 
courts  of  common  law  had  a  superintending  power,  similar  to  that  exercised  by  the 
English  courts  of  Westminster  Hall,  to  control  and  check  the  undue  extension  of  tlie 
jurisdiction  of  these  Vice  Admiralty  courts  by  writs  of  prohibition ;  but  this  was  a 
controverted  point  which  was  never  finally  settled. — (2  Chal.  Opin.  Em.  Law,  208.) 

Appeals,  from  the  tribunals  of  the  last  resort  in  the  colonies  to  the  king  in  coun- 
cil, seem  to  have  been  coeval  with  the  regular  organization  of  the  colonial  govern- 
ments. Appeals  from  the  courts  of  Virginia  were  taken  to  the  king  in  council  soon 
after  that  colony  was  placed  under  the  government  of  the  king ;  and  before  that  time 
they  were  carried  to  the  treasurer  and  council  of  the  Virginia  company  in  England, 
(  Chal.  Pol.  An.  38,  41.)  At  the  time  of  settling  the  colonies  in  this  country,  there 
was  no  English  judicatory  besides  those  within  the  realm  of  England  ;  except  those 
of  Guernsey  and  Jersey,  the  remnants  of  the  Dutchy  of  Normandy.  According  to 
the  custom  of  Normandy,  appeals  lay  to  the  duke  in  council ;  and  upon  that  ground, 
appeals  lay  from  tlie  judicatories  of  those  islands  to  the  king  of  England,  as  duke  in 
council ;  and  upon  that  general  precedent,  without  perhaps  attending  to  the  fact  of 
the  appeal  being  to  the  king,  in  his  character  of  duke  of  Normandy,  it  was  held, 
that  an  appeal  should  be  allowed  from  the  judicatories  of  the  colonies  to  the  king  in 
council,  {Poivn.  Adm.  Colo.  61,  112.) 

But  England  claimed  an  absolute  supremacy  over  all  her  colonies,  (Chal.  Pol.  An. 
684,  690  ;)  and,  for  the  purpose  of  sustaining  tliat  supremacy,  it  was  finally  settled, 
as  an  inherent  right,  as  well  of  the  subject  to  prosecute  as  of  the  sovereign  to  receive 
appeals,  without  any  reser\-ation  of  such  right  in  the  colonial  charters  ;  for,  as  was 
said,  without  such  appeal,  the  law  made  for,  or  permitted  to  a  colony  might  be  insen- 
sibly changed  within  itself  without  the  assent  of  the  mother  country  ;  and  judgments 
might  be  given  in  the  colonies  to  the  disadvantage,  or  the  lessening  of  the  supremacy 
of  the  mother  counby,  or  to  make  the  superiority  to  be  only  of  tlie  king,  not  of  the 
crown  of  England,  (  Chal.  Pol.  An.  304  ;  Stokes'  lleiv  Brit.  Col.  27 ;  5  Frank.  Works, 
355  ;  Vavg.  Rep.  290, 402  ;  Show.  P.  C.  33  ;  1  P.  Will.  329  ;  2  3Ieriv.  143.)  And  as  in 
many  cases  for  the  want  of  a  full  and  accurate  knowledge  of  the  peculiar  law  of  the 
colony  it  might  be  difficult  or  impossible  for  a  party  to  obtain  any  benefit  by  an  appeal, 
without  a  special  verdict,  it  was  thought,  that  it  might  be  proper  to  authorize  and  require 
the  judges  in  all  important  cases  to  compel  the  jury  to  find  a  special  verdict.  (1  Chal. 
Opin.  Em.  Law,  185.)  Hence  with  a  view  to  obtain  relief  by  appeal,  it  appeare,  that 
during  the  provincial  government  ofMarj'land,  much  apparently  unnecessary  matter, 
such  as  acts  of  Assembly,  kc,  was  introduced  into  the  record  in  the  form  of  bills  of 
exceptions  and  special  verdicts,  (I  H.  ^-  McH.  67  ;  2  if.  .§■  McH.  279.)     But  it  was 


THE  CHANCELLOR'S  CASE.  609 

ber,  17G5.     And,  on  the  19tli  of  the  same  month,  they  agreed  to 
and  published  "  a  Declaration  of  the  rights  and  grievances  of  the 


not  easy  to  induce  the  colonists  to  submit  to  this  general  supremacy  as  a  fundamental 
principle  in  their  connexion  with  the  mother  country;  because  it  mortified  their 
pride,  and  was,  in  all  cases  in  which  the  right  of  appeal  was  exercised,  attended  with 
much  delay,  expense  and  vexation,  (Chal.  Pol.  An.  295,343,  490,  678  ;  1  Ram.  U.  S. 
Ill ;  1  Belk.  N.  Hamp   247.) 

Appeals  lay  from  the  highest  court  of  record  in  each  of  the  colonies  to  the  kin"-  in 
council,  in  all  civil  cases,  where  the  land  or  other  thing  in  controversy  amounted  to 
three  hundred  pounds  sterling  or  upwards  in  value,  (1  Smith'' s  His.  N.  York,  384; 
Pown.  Adm.  Colo.  61,  note ;  3  llrg.  Stat.  550  ;  Stokes'  View  Brit.  Col.  225  ;  1  H.  ^■ 
McH.  44,  77,  80,  90,  504  ;  2  H.  ^-  McH.  324,  346 ;  1702,  ch.  1,  s.  20 ;  1773,  ch.  7,  s. 
5^6  ;)  and  in  prosecutions  for  misdemeanors,  where,  on  conviction,  the  fine  imposed 
exceeded  the  value  of  two  hundred  pounds  sterling,  {Stokes'' View  Brit.  Col.  224.) 
But  if  the  matter  in  question  related  to  the  taking,  or  demanding  of  any  duty  payable 
to  the  king,  or  to  any  fee  of  office,  or  annual  rent,  or  the  like,  where  the  benefits 
subsequent!}-  accruing  fi-om  the  same  title  might  be  bound,  or  because  of  the  pecu- 
liar circumstances  of  the  case,  an  appeal  might,  at  the  discretion  of  the  king  in 
council,  be  allowed,  though  the  value  then  immediately  involved  was  less  than  three 
hundred  pounds  sterling.  ( Stokes'  View  Brit.  Col.  224  ;  2  Chal.  Opin.  Em.  Laic,  177.) 
An  appeal  could  only  be  taken  from  the  colonial  court  of  the  last  resort ;  and  what  court 
that  was  depended  upon  the  nature  of  the  case;  and  upon  the  constitution  of  the 
judicial  department  of  the  colony.  An  appeal  lay  in  some  cases  from  peculiarly 
constituted  tribunals  ;  (1702,  ch.  1,  s.  20  ;  1726,  ch.  9  ;  1  H.  4"  McH.  409,  509,)  or 
direct  from  the  colonial  court  of  chancery,  {Stokes'  View  Brit.  Col.  26  ;)  but  if  the 
case  might  have  been  carried  to  a  higher  colonial  court,  the  appeal  could  only  be 
taken  from  such  court  of  last  resort  of  the  colony,  (2  Chal.  Opin.  Em.  Laiv,  175.) 
In  Maryland  in  a  case  in  the  court  of  chancery  upon  a  petition  by  the  defendant 
praying  an  appeal  to  the  king  in  council,  the  praj-er  was  on  the  1st  of  March  1738 
rejected.  "The  said  prayer,  being  (as  it  was  said)  contrar}-  to  his  majesty's  instruc- 
tions to  grant  an  appeal  to  his  majesty  from  any  other  court,  but  from  tlie  court  of 
appeals  which  is  the  supreme  court  of  this  province,  to  which  court  he  may  appeal, 
and  from  thence  to  his  majestj-,  if  he  think  fit." — {Chan.  Proc.  lib.  I.  R.  No.  4,fol.  60.) 

In  admiralty  cases,  if  the  decision  was  given  by  the  governor  and  council,  or  other 
colonial  court  of  last  resort,  then  the  appeal  was  direct  to  the  king  in  council ;  but 
if  the  sentence  was  passed  by  a  vice-admiralty  court,  constituted  by  the  king  in  the 
colony,  then  the  appeal  was  to  the  liigh  court  of  admiralty  of  England  ;  and  from 
thence  the  case  might  be  taken  by  appeal  to  the  king  in  council. — (2  Chal.  Opin. 
Em.  Law,  227,  22S.)  No  case  could  however  be  transmitted  for  difficultj- ;  but 
must  be  determined  by  the  court  below  one  way  or  the  other. — (2  Ld.  Raym.  1448.) 

An  appeal  to  the  king  in  council  was  required  to  be  made  within  fourteen  days 
after  the  judgment  or  decree  of  the  colonial  court  was  rendered  ;  and  the  appellant 
was  required  to  give  good  security  to  prosecute  his  appeal  with  effect,  or  to  pay  all 
costs  and  damages  in  case  the  decision  should  be  affirmed,  (1773,  ch.  7,  s.  5  ^  6; 
3  Virg.  Stat.  550.)  The  mode  of  ascertaining  the  value  of  the  thing  in  controversy 
was  regulated  by  the  king's  instructions;  or  by  the  rules  of  the  superior  colonial 
courts.  A  transcript  of  the  record  of  the  colonial  court  was  made  out  by  its  clerk, 
who  made  affidavit,  that  the  copy  was  a  true  one,  and  that  it  had  been  compared  with 
the  original. — {Stokes'  View  Brit.  Col.  225.) 

When  the  record  thus  authenticated  reached  the  king  in  council,  it  was  almost  as  a 
matter  of  course  referred  to  a  committee  to  consider  and  report  upon  the  matter. 

7T 


610  THE  CHANCELLOR'S  CASE. 

colonists  in  America ;"  in   which,   among  other  things,  the  late 
extension  of  the  jurisdiction  of  the  vice-admiralty  courts,  was  enu- 


Whereupon  the  committee  appointed  a  time  and  place  for  the  hearing,  of  which 
they  gave  notice  to  the  parties  personally  or  by  publication  ;  after  which  and  upon 
maJcing  up  their  opinion  they  reported  accordingly.  But  tlie  course  of  proceeding 
before  the  king  in  council ;  the  judgment  of  that  tribunal,  and  its  mandate  with  which 
tlie  case  was  sent  back  to  the  colonial  court  may  be  better  understood  by  a  perusal  of 
the  following  extract  from  the  records  of  the  High  Court  of  Chancery  of  Maryland, 
in  the  case  of  PowLSON  i>.  FoRWOOD. 

"Memorandum. — This  22d  day  of  February  1725,  his  Honoiu:  the  Chancellor . 
acknowledges  to  have  received  of  Mr.  Plater  by  order  of  his  Honour  the  Governor 
copies  of  several  orders  of  the  king  and  council,  to  wit,  one  of  the  11th  of  August 
1720 ;  one  other  of  the  30th  of  April  1724  ;  and  one  other  of  the  4th  of  July  1724 ; 
and  ordered  tlie  same  to  be  entered  in  the  proceedings  of  this  court  to  avail  so  far  as 
they  ought ;  which  orders  are  in  the  words  following,  viz  : 

"At  the  Council  Chamber,Whitehall,  the  1 1th  August  1720,  present  their  excellencies 
the  Lords  Justices,  &c.     (Here  follow  the  names  of  the  members  of  the  council.) 

"  Upon  reading  this  day  at  the  board  a  report  from  the  Right  Honourable  the  Lords 
of  the  committee  for  hearing  appeals  and  complaints,  &.C.,  from  the  plantations,  dated 
the  4th  of  this  instant  in  the  words  following,  viz  :  Whereas  by  an  order  in  council  of 
the  26th  instant  referring  to  this  committee  the  humble  petition  oi  Jonathan  Foncood, 
complaining  of  several  unjust  proceedings  against  him,  and  his  agents  in  the  coui'ts 
of  judicature  in  the  Province  of  Maryland  at  the  suit  of  one  Gilbert  Poidson  master 
of  tlie  ship  Dolphin,  touching  an  agreement  entered  into  between  them,  for  tlie  said 
Powlson  to  ti'ansport  from  England  to  the  said  Province  and  to  Virginia,  one  hundred 
and  thirty-one  servants  ;  on  account  whereof,  the  petitioner  alleges,  the  said  Powlson 
has  obtained  two  attachments  against  his  effects  there,  one  of  them  for  one  hundred 
and  sixty  pounds  which  he  actually  received,  and  the  other  for  seven  hundred  pounds 
for  which  he  has  sold  good  part  of  the  petitioner's  effects  in  his  hands ;  and  humbly 
praying  to  be  relieved  in  the  premises. 

"  Their  Lordships  this  day  took  the  same  into  consideration,  and  having  heard  the 
petitioner  by  his  counsel  therein,  do  agree  humbly  to  report  their  opinion,  that  upon 
3Ir.  Forwood's  giving  such  security  as  the  Governor  and  Council  of  Maryland  shall 
think  sufficient  to  answer  the  said  Powlson^s  demands,  his  goods  in  specie  shall  be 
restored  to  him,  or,  in  case  they  are  sold,  he  shall  be  paid  the  money  arising  from  the 
sale  thereof;  and  that  thereupon  the  Provincial  Court  do  proceed  to  hear  and  deter- 
mine the  cause  or  causes  with  liberty  for  either  party  to  appeal  therefrom. 

"  Their  excellencies  the  Lords  Justices  in  Council  taking  the  said  report  into 
consideration  are  pleased  to  approve  thereof,  and  to  order  as  it  is  hereby  ordered, 
that  upon  3Ir.  Forwood's  giving  such  security  as  the  Governor  and  Council  of  Mary- 
land shall  think  sufficient  to  answer  the  said  Poivl soil's  demands,  his  goods  in  specie 
shall  be  restored  to  him,  or  in  case  they  are  sold  he  shall  be  paid  the  money  arising 
from  the  sale  thereof;  and  that  thereupon  the  Provincial  Court  do  proceed  to  hear 
and  determine  the  cause  or  causes  with  liberty  for  either  party  to  appeal  from  such 
determination  ;  whereof  the  deputy  governor,  or  commander  in  chief  for  the  time 
being  of  the  Province  of  Maryland,  and  all  others  whom  it  may  concern  are  to  take 
notice,  and  govern  themselves  accordingly."  ^ 

"  At  the  court  of  St.  James's,  the  SOth  day  of  April  1724.  Present,  the  King's  most 
Excellent  Majesty,  &c.  (here  follow  the  names  of  the  members  of  the  council.) 
Upon  reading  this  day  at  the  board  a  report  from  the  Lords  of  the  committee  for 
hearing  appeals,  complaints,  Stc.  fi-om  the  plantations,  &c.  (here  follows  tlie  report 


i 


THE  CHANCELLOR'S  CASE.  611 

merated  as  one  of  their  grievances,  (e)  In  the  year  1767  the  Bri- 
tish Parliament  passed  those  other  acts,  for  laying  internal  taxes 
upon  the  colonists,  commonly  called  the  revenue  acts.    Upon  these 

of  the  committee  in  relation  to  other  matters  in  the  before  mentioned  case  of  Powl- 
son  V.  Forwood.) 

"  His  Majesty  in  council  taking  the  said  report  into  consideration,  is  pleased  to 
approve  thereof,  and  accordingly  to  enforce  the  said  order  of  the  11th  of  August  1720, 
and  to  that  end  his  Majesty  is  hereby  pleased  to  order,  that  the  Deputy  Governor  of 
the  said  Province  of  Maryland  do  command  the  courts  there  to  caiTy  the  said  order 
into  immediate  execution,  by  causing  speedy  restitution  to  be  made  the  said  peti- 
tioner of  his  effects,  or,  in  case  they  are  sold,  immediate  payment  of  the  money  aris- 
ing therefrom.  And  his  Majesty  taking  particular  notice,  that  the  said  Deputy 
Governor  hath  not  complied  with  the  said  former  order  in  council,  is  hereby  further 
pleased  to  order  and  require  him  forthwith  to  send  an  account  to  this  board  why  the 
said  order  w-as  not  carried  into  execution,  together  with  his  reasons  for  the  same." 

"At  the  court  at  Kensington,  the  4th  day  of  July  1724.  Present,  the  King's  most 
excellent  Majesty,  &c.  (here  follow  the  names  of  the  members  of  the  council.) 
Upon  reading  this  day  at  the  board  a  report  from  the  right  honourable  the  Lords  of 
the  committee  for  hearing  appeals  from  the  Plantations  dated  on  the  17th  of  June  last 
in  the  words  following,  viz  :  (here  follows  the  report  in  relation  to  the  before  men- 
tioned case  of  Foidson  v.  Forwood,  which  concludes  in  these  words,  to  wit :) 

"  Their  Lordships  having  heard  counsel  on  behalf  of  the  appellant,  none  appearing 
for  the  respondent,  notwithstanding  the  usual  time  for  his  appearing  according  to  the 
rules  of  this  board  was  expired,  and  although  the  usual  notice  was  affixed  on  the 
exchange  of  London,  do  agree  humbly  to  ofler  it  as  their  opinion  to  your  Majesty, 
that  the  said  judgments  of  the  20th  of  September  1720,  and  the  7th  of  May  1723, 
should  be  reversed  and  set  aside ;  and  that  the  appellant  be  restored  to  all  he  hath 
lost  by  means  of  the  said  judgments." 

"  His  Majesty  in  council  taking  the  said  reports  into  consideration  is  pleased  to 
approve  thereof,  and  to  order  as  it  is  hereby  ordered,  that  the  said  judgments  of  tlie 
20th  of  September  1720,  and  the  7th  of  May  1723  be  reversed  and  set  aside.  And 
that  the  appellant  be  restored  to  all  ho  hath  lost  by  means  of  the  said  judgments 
whereof  the  deputy  governor  or  commander  in  chief  for  the  time  being  of  the  said 
Province  of  Maryland,  and  all  others  whom  it  may- concern  are  to  take  notice  and 
govern  themselves  accordingly." — (Chan.  Procc.  lib.  I.  R.  No.  J,fol.  57;  1692,  cli. 
17,  note  ;  Bacon's  Laws  of  Maryland.) 

If  the  appellant  failed  to  transmit  a  properly  authenticated  transcript  of  the  record  ; 
or  to  proceed  with  his  appeal  within  one  year  after  it  had  been  allowed  in  the  colony, 
the  appeal  might  be  dismissed,  (2  Ld.  Raym.  1447.)  No  costs  were  allowed  on  the 
final  determination  of  such  appeals,  or  at  least  not  as  a  matter  of  course,  (4  DaJl. 
opp.  25  ;  2  Ld.  Raym.  1447.)  In  all  cases  a  decision  by  the  king  in  council  was  final 
and  conclusive ;  and  there  was  no  instance  of  a  rehearing  of  any  such  appeal, 
(1  Ves.  455.)  An  opinion  seems  to  have  been  entertained  by  some,  that  the  king  in 
council  might  of  himself,  and  directly,  issue  an  execution ;  and  have  a  writ  of 
sequestration  in  execution  of  his  final  judgment  sent  to  the  governor  of  the  colony, 
(  Gilb.  For.  Rom.  215  ;  2  P.  Will.  262.)  But  no  coercive  process  was  ever  attempted 
to  be  issued  by  the  king  in  council  against  a  colony  itself;  and  if  it  had  been 
attempted  there  is  every  reason  to  believe,  that  it  would  not  have  been  endured, 
(2  Hutch.  His.  Mass.  204.) 
<«)  1  Niles's  Reg.  13,  65, 


612  THE  CHANCELLOR'S  CASE. 

acts  reaching  this  country,  the  Massachusetts  Assembly,  on  the 
11th  of  February  1768,  addressed  a  circular  letter  to  the  speakers 
of  the  other  assemblies,  stating  the  grounds  of  their  opposition  to 
them  ;  that  they  had  forwarded  petitions  and  remonstrances  against 
the  late  duties  ;  and  then  say,  that  "  they  have  also  submitted  it  to 
consideration,  whether  any  people  can  be  said  to  enjoy  any  degree 
of  freedom,  if  the  crown,  in  addition  to  its  undoubted  authority 
of  constituting  a  governor,  should  also  appoint  him  such  stipend 
as  it  shall  judge  proper,  without  the  consent  of  the  people,  and  at 
their  expense  ;  and  whether,  while  the  judges  of  the  landy  and 
other  civil  officers  in  the  province,  hold  not  their  commissions  dur- 
ing good  behaviour,  their  having  salaries  apjyointed  by  the  crown, 
independent  of  the  people,  hath  not  a  tendency  to  subvert  the  princi- 
ples of  equity,  and  endanger  the  happiness  and  security  of  the  sub- 
ject.^^  This  letter,  by  the  express  command  of  the  British  minis- 
ter, w'as  by  Governor  Sharpe  of  Maryland,  in  a  message  of  the 
20th  of  June  1768,  to  the  House  of  Delegates,  denounced  as  a 
dangerous  and  factious  attempt  to  disturb  the  public  peace  ;  and  the 
House  was  requested  "  to  take  no  notice  of  it,  which  would  be  treat- 
ing it  wdth  the  contempt  it  deserves."  In  reply  to  which  message, 
the  House,  among  other  things,  say,  "  be  pleased  to  be  assured, 
that  we  cannot  be  prevailed  on  to  take  no  notice  of,.or  to  treat  loith 
the  least  degree  of  contempt  a  letter  so  expressive  of  duty  and  loyalty 
to  the  sovereign,  and  so  replete  with  just  principles  of  liberty.^'' 
Immediately  upon  the  receipt  of  which  reply  the  House  of  Dele- 
gates was  prorogued  by  the  governor,  (y) 

The  attention  of  the  colonists  of  this  country  having  been  thus, 
for  the  first  time,  solemnly  drawn  to  the  nature  and  importance  of 
judicial  independency,  the  subject  was  universally  and  thoroughly 
discussed  ;  and  soon  became  familiarly  and  perfectly  understood. 
If  England  had  seen,  and  ascertained  the  necessity  of  a  dependent 
and  subservient  judiciary  to  enforce  the  acts  of  trade,  and  the  acts 
for  raising  an  internal  revenue ;  the  colonies,  on  the  other  hand, 
now  saw  as  clearly,  and  became  as  thoroughly  convinced,  that  an 
impartial,  firm,  and  tnc^epenc?en^  judiciary  was  no  less  necessary  for 
the  preservation  of  their  rights  and  liberties.  It  was  agreed,  on 
both  sides,  that  laws,  whether  good  or  bad,  were  futile  without 
suitable  agents  to  execute  them.     In  consequence  of  the  opposi- 


(/)  Votes  and  Proceedings  House  Delegates,  22d  June  176S,  and  tlie  Council 
proceedings  of  the  same  time.    1  Piik.  His.  458,  461. 


THE  CHANCELLOR'S  CASE.  613 

tion  which  the  colonists  made  about  this  time,  England  withdrew 
her  pretensions  for  a  season,  but  soon  after  renewed  them  in 
another  form. 

To  oppose  this  renewed  attack  another  colonial  Congress  was 
assembled  at  Philadelphia,  who  on  the  14th  of  October,  1774, 
agreed  to  and  published,  "  a  declaration  and  vindication  of  the 
rights  and  liberties  of  the  English  colonies  in  North  America." 
This  second  ^  colonial  Congress  is  universally  acknowledged  to 
have  been  one  of  the  most  enlightened,  illustrious,  and  patriotic 
bodies  of  men  ever  convened  in  any  age  or  nation.  Upon  the 
subject  of  judicial  independency  their  language  is  strong  and  une- 
quivocal. After  enumerating  the  several  acts  of  Parliament  by 
which  the  jurisdiction  of  the  colonial  tribunals  was  superseded ; 
and  that  of  the  subservient  vice-admiralty^  and  other  courts  substi- 
tuted in  its  place,  among  other  causes  of  complaint,  this  Congress 
thus  conclude  their  Declaration  of  Rights  :  "To  these  grievous 
acts  and  measures  Americans  cannot  submit,  but  in  hopes  their  fel- 
low subjects  in  Great  Britain  will,  on  a  revision  of  them,  restore 
us  to  that  state  in  which  both  countries  found  happiness  and  pros- 
perity, we  have,  for  the  present,  only  resolved  to  pursue  the  fol- 
lowing peaceable  measures.  1.  To  enter  into  a  non-importation, 
non-consumption,  and  non-exportation  agreement  or  association. 
2.  To  prepare  an  address  to  the  people  of  Great  Britain,  and  a 
memorial  to  the  inhabitants  of  British  America.  And  3,  To  pre- 
pare a  loyal  address  to  his  majesty;  agreeable  to  resolutions 
already  entered  into."  In  their  address  to  the  king,  prepared  and 
published  in  pursuance  of  this  resolution,  they  complain,  among 
other  things,  that  "the  judges  of  admiralty  and  vice-admiralty 
courts  are  empowered  Jo  receive  their  salaries  and  fees  from  the 
effects  condemned  by  themselves.''^  And,  in  the  same  address,  they 
further  complain,  that  "  the  judges  of  courts  of  common  laio  have 
been  made  entirely  dependent  on  one  part  of  the  legislature  for  their 
salaries,  as  well  as  for  the  duration  of  their  commissions. '''{g) 


(g)  The  Journals  of  Congress,  14th  October,  1774. 

Hastings  v.  Plater. — This  bill  was  filed  on  the  1.3th  of  February  1735,  by- 
Samuel  Hastings,  Samuel  Minskie,  and  John  Evitt,  against  Benjamin  Tasker,  George 
Plater,  and  Onorio  Rozolini,  executors  of  Rebecca  Calvert  deceased,  who  was  admin- 
istratrix of  Charles  Calvert  deceased.  The  bill  stales,  that  the  late  Richard  Smith, 
in  his  lifetime  formed  a  plan  for  causing  a  ship  to  be  built  by  subscription  in  the  city 
of  Annapolis,  in  which  each  subscriber  was  to  hold  a  share  in  proportion  to  the  sum 
by  him  subscribed  ;  that,  having  obtained  from  several  persons  subscriptions  to  a 


624  THE  CHANCELLOR'S  CASE. 

This  Congress  asserted  and  maintBined  the  rights  of  their  fel- 
low-citizens as  EngUshmen ;  and,  following  the  example  of  "  their 

large  amount,  he  employed  the  plaintiffs  to  build  a  ship  as  proposed,  and  engaged 
Patrick  Simpson,  since  deceased,  to  take  charge  of  her  when  built  as  master  :  that 
the  plaintilis  in  compliance  with  their  agreement  built  and  launched  a  ship,  w^hich 
was  called  the  Maryland  Merchant,  and  the  greater  part  of  hel-  rigging,  tackle,  and 
furniture,  were  bought  and  set  up  in  her,  and  several  officers  and  sailors  were  hired  to 
navio-ate  her  on  her  intended  voyage  ;  but  Smith  having  received  all  or  the  greatest 
part  of  the  subscription  money,  embezzled  so  much  of  it,  that  he  was  unable  to  fit 
her  for  sea  ;  that  he  had  not  paid  these  plaintiffs  for  their  work  and  labour,  and  had 
besides  involved  them  and  Patrick  Simpson  in  liabilities  for  several  considerable 
sums  of  money  on  account  of  the  ship  ;  that  the  subscribers  and  contributors  to  the 
building  of  the  ship  in  this  state  of  things,  seeing  their  prospects  of  deriving  any 
advantage  from  their  subscriptions  to  be  almost  hopeless,  and  feeling  kindly  disposed 
to  enable  these  plaintiffs  if  practicable  to  obtain  some  reimbursement  for  their  losses, 
transferred  and  assigned  all  their  interest  in  her,  except  some  sails  paid  for  on  account 
of  D.  Dulanj',  to  the  value  of  £\20,  to  these  plaintiffs  and  Patrick  Simpson.  That 
afterwards  some  of  the  seanien,  who  had  been  hired  on  account  of  the  ship,  instituted 
a  suit  in  the  vice-admiralty  court  of  this  province  before  the  Honourable  Charles 
Calvert  then  judge  of  the  said  court,  against  the  ship  and  tackle,  &,c.,  and  by  a  decree 
of  that  court  she  was  condemned  and  sold  for  the  sum  of  £,  600,  which  was  brought 
in  and  deposited  with  the  said  judge  of  the  vice-admiralty  court ;  out  of  which  the 
seamen's  wages  having  been  paid  there  was  left  a  balance  of  £.309;  after  which 
Patrick  Simpson  was  paid  £102,  and  William  Cummings  £6,  leaving  a  residuum 
of  £201 ;  to  which  these  plaintiffs  are  entitled  as  assignees  of  the  subscribers.  That 
Charles  Calvert  the  Judge  having  that  money  in  his  hands  died  intestate,  and  admin- 
istration on  his  estate  having  been  granted  t6  Rebecca  Calvert,  she  thus  obtained  it ; 
after  which  she  by  her  last  will  appointed  these  defendants  her  executors  and  died, 
and  these  defendants  having  taken  upon  themselves  the  execution  of  her  will,  thus 
became  liable  for  that  amount  to  these  plaintiffs  :  Whereupon  they  prayed  that  tlic 
defendants  might  be  compelled  to  pay  them  the  said  sum  of  money,  &c. 

On  the  17th  of  February,  1735,  the  defendant  Benjamin  Tasker  disclaimed  any 
interest  in,  or  any  authority  to  intermeddle  with  the  money  mentioned  in 'the  com- 
plainant's bill,  he  having  before  the  Commissary  General  entered  on  record  his  renun- 
ciation of  the  executorship  of  the  testament  of  Rebecca  Calvert  deceased;  and  he 
also  disclaimed  any  right  w'hatever  to  the  administration  of  the  estate  of  Charles 
Calvert  deceased.  The  two  other  defendants  by  their  answer  admitted  the  facts  set 
forth  in  the  bill ;  but  they  averred,  that  the  said  Charles  and  Rebecca  had  made  no 
profit  fi-om  the  money  in  their  hands ;  that  they  as  well  as  these  defendants  had 
always  been  and  were  then  ready  to  pay  the  same  to  any  persons  justly  entitled  to  it, 
and  to  whom  they  could  be  safe  in  paying  it,  &c.  The  case  was  thus  submitted  on 
bill  and  answer. 

17/A  February,  17.36.— Ogle,  C/wRcrZ7or.— -Decreed,  that  the  defendants  George 
Plater  and  Onorio  Rozolini  do  pay  and  deliver  unto  the  complainants  the  said  sum 
of  £201  currency,  upon  such  security  being^iven  to  the  master  of  this  court  as  he 
shall  judge  sufficient  by  a  bond  of  the  penalty  of  £400  currency,  payable  to  him, 
with  condition  to  pay  and  satisfy  to  any  person  or  persons  such  proportion  of  the  said 
£201  as  such  person  or  persons  shall  appear  to  be  justly  entitled  to  after  deduction 
of  costs  expended  in  this  suit  by  both  parties,  which  is  hereby  ordered  and  directed 
to  be  paid  out  of  the  said  sum  of  £201  currerj^y.—C  C/ian.  Proce.  lib.  I.  R.  No.  2, 
fol.  761.) 


THE  CHANCELLOR'S  CASE.  615 

ancestors  in  like  cases,"  had  recourse  to  precedent  as  well  as  to 
argument.  In  the  English  statute  book  they  found  the  most  une- 
quivocal authority  in  favour  of  that  judicial  independency,  to  the 
benefits  of  which,  they  thus  contended  the  colonists  were  fully 
entitled;  By  the  famous  English  statute,  passed  in  the  year  1700, 
(13  W.  3,  c.  2,)  for  the  better  securing  the  rights  and  liberties  of 
the  subject,  it  is  enacted  and  declared  in  these  words ;  "  that 
judges'  commissions  be  made  quamdia  se  bene  gesserint,  (during 
tlieir  good  behaviour,)  and  their  salaries  ascertained  and  established  ; 
but  upon  the  address  of  both  Houses  of  Parliament,  it  may  be 
lawful  to  remove  them."(A) 

(A)  The  Long  Parliament,  says  the  historian  of  the  Commonwealth  of  England, 
deserves  to  be  for  ever  held  in  grateful  remembrance  for  the  gi-eat  improvements  we 
derive  from  them  in  points  most  essential  to  the  independence  and  freedom  of  man  in 
society.  Among  which  is  that  which  ^elates  to  the  tenure  by  which  the  judges,  who 
are  appointed  to  determine  questions  of  law  between  man  and  man,  and  between  the 
sovereign  and  the  subject,  hold  their  offices.  One  of  tlie  earliest  decisions  of  that 
parliament  was  the  vote  condemning  the  judgment  which  had  been  given  for  the  Icing 
in  the  matter  of  ship  money.  And  shortly  after,  Januaiy  1643,  the  house  of  Lords 
appointed  a  committee  to  consider,  among  other  things,  of  the  judges  holding  their 
places  durante  beneplacito.  The  next  day  they  deputed  seventeen  of  their  body  to 
present  their  humble  desire  to  the  king,  that  the  twelve  judges,  and  the  attorney  of 
the  court  of  wards,  might  hold  their  places  by  patent,  quamdiu  se  bene  gesseriiit. 
They  accordingly  waited  on  Charles  with  their  request ;  to  which  he  signified  his 
eissent.  Agreeably  to  this  decision,  in  the  petition  of  both  houses  of  parliament  pre- 
sented to  the  king  at  Oxford,  at  the  close  of  the  first  campaign  of  the  civil  war,  they 
make  it  one  of  their  demands,  that  the  twelve  persons  whom  they  name  for  the  office 
of  judges,  as  weU  as  all  the  judges  of  the  same  courts  for  the  time  to  come,  should 
hold  their  places  by  letters  patent  quamdiu  se  bene  gessennt.^{  Godw.  Com.  Eng.  b. 
3,  c.  29.) 

Immediately  after  the  king  had  been  put  to  death  it  was  enacted  by  the  Long  Par- 
liament, that  the  commissioners  of  the  great  seal  should  also  hold  their  offices  during 
good  behaviour,  (3  Godw.  Com.  Eng.  11.)  But  this  important  improvement  as  to  the 
tenure  by  which  the  judges  and  chancellor  were  to  hold  their. offices,  was,  on  the 
restoration  of  Charles  the  second,  entirely  put  aside,  and  nothing  more  said  upon  the 
subject  until  some  time  after  the  English  revolution  of  16S8,  when  it  was  enacted  by 
the  statute  of  the  12  k.  13  W.  3,  c.  2,  that  the  judges  §liould  hold  their  commissions 
during  good  behaviour;  still  however  leaving  tlie  Chancellor  to  hold,  as  formerly, 
during  pleasure. 

In  an  opinion  of  the  attorney  and  solicitor  general  D.  Ryder,  and  W.  Murray, 
given  on  the  22d  of  June  1753,  to  the  commissioners  of  trade  and  plantations  respect- 
ing an  act  passed  by  the  General  Assembly  of  Jamaica,  providing,  that  all  tlie  judges 
of  the  supreme  court  of  judicature  of  the  island  should  hold  their  offices  quamdiu  se 
bene  gesserint,  they  say,  that  "  it  directly  aficcts  the  royal  prerogative,  i;i  a  point  of 
great  moment,  and  for  which  no  occasion  is  pretended  fo  be  given,  by  the  abuse  of 
any  power  committed  to  the  governor ;  or,  if  there  had  been  any,  it  would  be  much 
more  suitable  to  his  majesty's  honour  and  dignity,  to  reform  it,  by  his  own  autho- 
ritj',  fully  sufficient  for  tliat  pui-pose,  in  such  manner,  as  to  his  royal  wisdom  should 
seem  meet,  than  by  the  interposition  of  an  act  of  Assembly ;  nor  does  it  appear  to 


616  THE  CHANCELLOR'S  CASE. 

Not  quite  two  years  after  the  meeting  of  the  second  Colonial 
Congress,  the  United  States  declared  themselves  independent ; 
and,  in  their  Declaration  of  Independence,  among  the  wrongs  they 
charge  upon  the  British  king,  and  as  one  of  "  the  causes  which 
impelled  them  to  the  separation,"  it  is  alleged,  that  "  he  has  made 
judges  dependent  on  his  will  alone,  for  the  tenure  of  their  offices, 
and  the  amount  and  payment  of  their  salaries.^'' 

After  all  these  ample  discussions  and  close  investigations  of  the 
rights  of  the  people,  and  after  the  publication  of  all  these  solemn 
acts,  the  convention  of  Maryland  was  convened,  in  the  month  of 
August,  1776,  to  establish  a  form  of  government  for  the  State. 
The    great   field  of  politics    had   been   fearlessly  and   diligently 


us,  that  in  the  situation,  and  circumstances,  in  which  this  island,  or  the  other  Ame- 
rican plantations,  stand,  it  would  be  advisable,  either  for  the  interests  of  the  planta- 
tions themselves,  or  of  Great  Britain,  that  the  judges  in  the  former  should  hold 
their  places  giiamdiu  se  bene  gesserijit." — (2  Chal.  Opin.  Em.  Law,  105.) 

"The  next  general  point  yet  undetermined,  (said  Governor  Pownall  in  176S  in 
speaking  of  the  colonial  governments,)  the  determination  of  which  very  essentially 
imports  the  subordination  and  dependence  of  the  colony  governments  on  the  govern- 
ment of  the  mother  country,  is,  the  manner  of  providing  for  the  support  of  govern- 
ment, and  for  all  the  executive  officers  of  the  crown.  The  freedom  and  right 
efficiency  of  the  constitution  require,  that  the  executive  and  judicial  officers  of 
government  should  be  independent  of  the  legislative  ;  and  more  especially  in  popular 
governments,  where  the  legislature  itself  is  so  much  influenced  by  the  humours  and 
passions  of  the  people ;  for  if  they  do  not,  there  will  be  neither  justice  nor  equity  in  any 
of  the  courts  of  law,  nor  any  efficient  execution  of  the  laws  and  orders  of  government 
in  the  magistracy ;  according,  therefore,  to  the  constitution  of  Great  Britain,  the  crown 
has  the  appointment  and  payment  of  the  several  executive  and  judicial  officers,  and  the 
legislature  settles  a  permanent  and  fixed  appointment  for  the  support  of  government 
and  the  civil  list  in  general.  The  crown  therefore  has,  a  fortiori,  a  right  to  require  of 
the  colonies,  to  whom,  by  its  commission  or  charter,  it  gives  the  power  of  government, 
such  permanent  support  appropriated  to  the  offices,  not  the  officers  of  government, 
that  they  may  not  depend  upon  the  temporary  and  arbitrary  will  of  the  legislature." 

And  again  he  says,  "  the  point  then  of  this  very  important  question  comes  to  this 
issue,  whether  the  inconveniences  arising,  and  ex-perienced  by  some  instances  of  mis- 
applications of  appropriations,  are  a  sufficient  reason  and  ground  for  establishing  a  mea- 
sure so  directly  contrar)'-  to  the  British  constitution :  and  whether  the  inconveniences  to 
be  traced  in  the  history  of  the  colonies,  through  the  votes  and  journals  of  their  legisla- 
tures, in  which  the  support  of  governors,  judges,  and  officers  of  the  crown  will  be 
found  to  have  been  witliheld  or  reduced  on  occasions,  where  tlie  assemblies  have 
supposed  that  they  have  had  reason  to  disapprove  the  nomination, — or  tlie  person, 
or  his  conduct ; — whether,  I  say,  these  inconveniences  have  not  been  more  detri- 
mental, and  injurious  to  government;  and  whether,  instead  of  these  colonies  beijjg 
dependent  on,  and  governed  under,  the  officers  of  the  crown,  tlie  sceptre  is  not 
reversed,  and  the  officers  of  the  crown  dependent  on  and  governed  by  the  Assem- 
blies, as  the  colonists  themselves  allow,  that  this  measure  renders  the  governor  and  all 
other  servants  of  Ihe  crown  dependent  on  the  Assembly." — (Povm.  Adm.  Colo.  76, 
78;  Smiili's  His.  N.  York,  118;  1  Pilk.  His.  126  ;  7 Mass.  His.  Sod.  129.) 


THE  CHANCELLOR'S  CASE.   '  617 

explored  in  every  direction ;  and  the  soundest  and  most  approved 
political  axioms  were  laid  before  that  convention.  It  appears,  that 
none  of  those  principles  and  solemn  acts,  in  which  their  fellow'- 
citizens  had  taken  a  deep  interest,  were  overlooked,  or  suffered  to 
escape  their  attention — of  which  the  following  comparison  will 
afford  one,  among  the  many  proofs,  that  might  be  adduced. 

In  the  Colonial  Declaration  of  Rights  of  the  14th  October,  1774, 
among  other  things,  it  was  declared,  "  that  the  respective  cobnies 
are  entitled  to  the  common  law  of  England,  and  more  especially  to 
the  great  and  inestimable  privilege  of  being  tried  by  their  peers  of 
the  vicinage,  according  to  the  course  of  that  law.  That  they  are 
entitled  to  the  benefit  of  such  of  the  English  statutes  as  existed  at 
the  time  of  their  colonization  ;  and  which  they  have,  by  experi- 
ence, respectively  found  to  be  applicable  to  their  several  local  and 
other  circumstances."  By  the  third  article  of  the  Declaration  of 
Rights  of  this  State,  it  is  declared,  "  that  the  inhabitants  of  Mary- 
land are  entitled  to  the  common  law  of  England,  and  the  trial  by 
jur}^,  according  to  the  course  of  that  law,  and  to  the  benefit  of 
such  of  the  English  statutes,  as  existed  at  the  time  of  their  first 
emigration,  and  which  by  experience  have  been  found  applicable 
to  their  local  and  other  circumstances." 

This  coincidence,  of  sense  and  language,  could  not  have  been 
merely  accidental ;  it  therefore  proves,  that  those  several  antece- 
dent declarations  of  the  rights,  and  of  the  independence  of  the 
people  of  this  country,  were  the  sources  whence  many  of  the  pro- 
visions of  the  Maryland  Declaration  of  Rights  were  almost  literally 
taken;  that  the  complaints  of  the  grievances,  arising  from  a 
dependent  and  subservient  judiciary,  as  expressed  in  the  previous 
Declarations  of  1765,  of  1774,  and  of  1776,  were  then  actually 
before  the  Marjdand  convention  ;  and,  that  the  judicial  indepen- 
dency, spoken  of  in  our  constitution,  was  intended  to  be  analogous 
to,  but  more  perfect,  than  that  specified  in  the  English  statute,  of 
1700,  which  had  become  so  well  understood,  and  was  so  solemnly 
and  generally  approved.  In  a  word,  it  is  manifest,  from  all  the 
public  acts,  discussions,  and  circumstances  of  those  times,  that 
the  thirtieth  article  of  our  Declaration  of  Rights  must  be  reo-arded 
as  the  condensed  expression  of  those  opinions  and  principles, 
relative'  to  judicial  independency,  to  establish  and  sustain  which  all 
united  America  fought,  bled,  and  triumphed. 

Such  is  the  history  of  this  provision  of  our  Declaration  oi  Riorhts. 
relative  io  judicial  independency.     Let  us  now  attentively  consider 

78 


G18  THE  CHANCELLOR'S  CASE. 

the  article  itself;  first  as  relates  to  its  general  character,  and  then 
analyze  and  investigate  its  several  parts.  The  article  is  in  these 
words  : 

"  That  the  independency  and  uprightness  of  judges  are  essen- 
tial to  the  impartial  administration  of  justice,  and  a  great  security 
to  the  rights  and  liberties  of  the  people  ;  wherefore,  the  chancellor 
and  all  judges  ought  to  hold  commissions  during  good  behaviour : 
and  the  said  chancellor  and  judges  shall  be  removed  for  misbe- 
haviour, on  conviction  in  a  court  of  law,  and  may  be  removed  by  the 
governor,  upon  the  address  of  the  General  Assembly :  provided, 
that  two-thirds  of  all  the  members  of  each  house  concur  in  such 
address.  That  salaries,  liberal,  but  not  profuse,  ought  to  be  secured 
to  the  chancellor  and  the  judges,  during  the  continuance  of  their 
commissions,  in  such  manner,  and  at  such  time  as  the  legislature 
shall  hereafter  direct,  upon  consideration  of  the  circumstances  of 
this  State.  No  chancellor  or  judge  ought  to  hold  any  other  office, 
civil  or  military,  or  receive  fees  or  perquisites  of  any  kind." 

The  objects  contemplated  by  this  article  are  the  personal  quali- 
fications of  an  individual.  It  looks  altogether  to  man  as  a  moral 
agent ;  and  proposes  to  sustain  and  fortify  those  excellencies  and 
capacities  which  fit  him  to  be  entrusted  with  judicial  power  ;  and 
to  provide  against  those  passions  and  frailties  which  may  occasion 
an  abuse  of  such  power.  This  general  character  of  this  article 
will  be  more  distinctly  understood  by  contrasting  it  with  some  other 
provisions  of  the  constitution,  which  speak  of  collective  bodies,  of 
divisions,  and  of  departments  of  power. 

Thus,  it  is  declared,  "  that  the  legislative,  executive,  and  judi- 
cial powers  of  government,  ought  to  be  for  ever  separate  and  dis- 
tinct from  each  other."  In  this  there  is  no  reference  to  personal 
and  moral  qualities  ;  it  speaks  merely  of  the  artificial  political  divi- 
sions of  power  ;  and  directs  each  one  of  them  to  confine  itself 
within  its  own  proper  sphere.  Again,  it  is  said,  "that  no  aid, 
charge,  tax,  burthen,  fee  or  fees  ought  to  be  set,  rated,  or  levied 
under  any  pretence,  without  the  consent  of  the  legislature  ;(i)   that 


(t)  This  peculiar  expression  in  the  twelfth  article  of  the  Declaration  of  Rights, 
refers  to  that  controversy  which  originated  in  the  year  1770,  between  the  Proprietaiy 
Governor  Eden,  and  the  House  of  Delegates,  as  to  the  power  claimed  by  the  Gov- 
ernor and  Council  to  settle  tlie  rate  of  ofiicers'  fees  by  proclamation  without  tlie  con- 
sent of  the  people  through  their  Delegates.  This  claim  of  the  last  provincial 
governor  was  strikingly  analogous  to  tliat  set  up  by  the  mother  country  to  levy  taxes 
by  act  of  parliament  without  the  consent  of  the  representatives  of  the  colonists.    It 


THE  CHANCELLOR'S  CASE.  6I9 

no  law  to  attaint  particular  persons  of  treason  or  felony  ought  to  be 
made  in  any  case,  or  at  any  time  hereafter ;  that  excessive  bail 
■ought  not  to  be  required,  nor  excessive  fines  imposed,  nor  cruel  or 
unusual  punishments  inflicted  by  the  courts  of  law."  These 
restrictions  relate  to  the  executive,  legislative,  and  judicial  powers 
respectively  ;  they  refer  to  masses  of  power,  or  modes  of  authority  ; 
and  declare,  that  they  shall  be  restricted  to  a  certain  extent,  and 
confined  within  certain  boundaries. 

This  tliirtieth  article  does  not  speak  of  the  quantity,  quality,  or 
extent  of  judicial,  or  any  other  sort  of  power;  laying  aside  every 
thought  upon  those  subjects,  it  gives  us  to  understand,  that  be  the 
extent  and  nature  of  the  judicial  power  what  it  may,  it  is  of  vital 
importance  to  have  suitable  agents  to  execute  it.  This  article 
contemplates  the  moral  and  intellectual  qualities  of  the  man  who  is 
the  public  agent.  "  The  independency  and  uprightness  of  judges  ;" 
that  is,  the  firmness,  the  honesty,  the  skill,  and  the  resolution  with 
which  the  men  appointed  to  fill  judicial  stations,  will  resist  all 
threats,  temptations,  and  undue  influence.  It  is  these  personal 
and  moral  qualities  which  "  are  essential  to  the  impartial  adminis- 
tration of  justice,  and  a  great  security  to  the  rights  and  liberties 
of  the  people."  To  sustain  these  qualities,  and  to  prevent  a 
deviation  from  these  moral  principles,  is  the  sole  object  of  this 
article ;  and  is  that  which  gives  to  it  its  peculiar  features  and 
character. 

After  having  thus  distinctly  indicated  the  human  excellencies 
which  are  required  for  judicial  stations,  this  article  then  proceeds 
to  prescribe  the  mode  in  which  those  excellencies  shall  be  sus- 
tained. It  directs  the  manner  in  which  deviations  from  them  may 
be  corrected  and  punished;  and  then  concludes  by  removing  from 
about  the  judicial  office  one  class  of  the  temptations  by  which  it 
had  been  previously  beset.  That  is,  the  judge  is  to  be  supported 
in  the  firm,  independent,  and  impartial  discharge  of  his  official 
duty,  by  being  commissioned  during  good  behaviour;  and  also  by 
having  his  salary  secured  to  him  during  the  continuance  of  that 
commission  ;  he  is  to  be  punished  for  misbehaviour  by  removal ; 
and  he  is  not,  as  formerly,  to  be  exposed  to  the  temptation  to  go 


is  to  this  claim  of  settling  the  foes  by  proclamation,  that  the  first  legislative  enact- 
ment of  the  republic  upon  the  subject  of  fees  alludes  by  declaring,  that  officers'  fees 
can  be  rated,  regulated  and  established  by  act  of  Assembly  only. — [October  1777, 
<h.  10 ;  Biog.  Sign.  D.  Inde.  Life  of  Carroll.) 


G20  THE  CHANCELLOR'S  CASE. 

astray  by  being   allowed   to  receive  fees   or  perquisites    of  any 
kind.(j) 

(j)  It  is  said,  that  during  the  ruda  ages  of  all  nations  those  intrusted  with  the 
administration  of  justice  were  compensated  for  their  ti^ouble  by  fees  and  perquisites 
paid  by  the  suitors,  (Smiih's  Wea.  Nat.b.  5,  c.  l,pt.  2.)  This  mode  of  remunerating 
the  judges  for  their  services  still  continues  to  a  great  extent  in  England,  although 
they  have  for  a  long  time  past  had  certain  salaries  allowed  them  by  act  of  parliament. 

But  all  exactions  or  fees  paid  by  the  suitor,  in  whatever  form  they  may  be  imposed, 
are,  in  truth,  taxes;  and  taxes  of  the  most  unequal  and  unjust  kind.  Dr.  Franklin 
in  his  examination  before  the  House  of  Commons  in  1766,  in  ans\ver  to  the  question. 
Is  the  American  stamp  act  an  equal  tax  on  the  country  ?  said,  he  thbught  not,  because 
the  greatest  part  of  the  money  must  aiise  from  lawsuits  for  the  recovery  of  debts, 
and  be  paid  by  the  lower  sort.of  pe.ople,  who  were  too  poor  easily  to  pay  their  debts. 
It  is  therefore  a  heavy  tax  on  the  poor  and  a  tax  upon  thera  for  being  poor.  And 
further,  tliat  such  a  tax  would  not  be  a  means  of  lessening  the  number  of  lawsuits ; 
because  as  the,  costs  all  fall  upon  the  debtor,  and  are  to  be  paid  by  him,  they  would 
be  no  discouragement  to  the  creditor  to  bring  his  action,  (4  Frank.  Woy.  128  ; 
Smith's  Wea.  Nat.  b.  5,  c.  2,  app.  to  aH.  1  &2.) 

The  Congress  of  1774  in  their  address  to  the  king,  among  other  things,  complain, 
that  the  judges  of  admiralty  and  vice-admiralty  were  empowered  to  receive  their 
salaries  and  fees  from  the  effects  condemned  by  tliemselves,  {Jour.  Cong.  26lh  October, 
1774.)  The  ground  of  this  complaint  was  not  merelj',  that  those  judges  were  per- 
mitted to  take  fees  from  suitors,  for  that  was  then  allowed  to  almost  all  the  judges  of 
the  colonies  ;  but  that  those  fees,  being  taken  from  the  property  condemned  by  them- 
selves, gave  an  undue  bias  to  their  minds,  and  the  authority  to  take  them  operated  as 
a  continual  temptation  to  condemn  where  there  was  no  sufficient  cause. 

Under  the  Provincial  Government  of  Maryland  a  great  variety  of  fees  were 
aflowed  and  directed  to  be  paid  to  the  chancellor,  which  must  have  formed'  a  very 
considerable  portion  of  the  annual  emoluments  of  his  office. — (1715,  ch.  25,  s.  2  ; 
1763,  ch.  18,  s.  83.) 

After  the  Declaration  of  Independence,  the  General  Assembly  recite,  that "  \vherea3 
it  is  inconsistent  with  the  Declaration  of  Rights,  that  the  chancellor  or  judge  of  the 
admiralty  should  take  fees  or  perquisites  of  any  kind ;  and  it  is  apprehended,  that 
private  individuals  who  have  business  done  for  them  in  the  chancety  court  or  court 
of  admiraltj',  or  who  may  have  the  great  seal  affixed  to  any  patent  commission,  or 
other  paper,  for  their  benefit,  shguld  pay  for  the  same  ;"  and  then  enact,  that  certain 
fees  in  chancery,  and  for  the  great  seal,  should  be  paid,  and  that  the  register  should 
every  half  year  pay  the  same  to  the  treasurer  for  the  use  of  the  public. — (October 
1777,  ch.  13 ;  November  1779,  ch.  25,  s.  22.) 

It  is  remarkable,  that  the  fees  collected  under  this  law  should  always  have  been 
accounted  for  as  so  ftiuch  money  arising  from  seals  and  taxes ;  that  fees  thus  levied 
should  have  been  at  all  times  regarded  by  the  English  authorities  as  taxes  which 
formed  a  part  of  the  public  revenue,  {Smith's  Wea.  Nat.  b.  5,  c.  1,  pt.  2  ;  Warrington 
V.  Mosely,  4  3Iod.  320  ;)  that  the  people  of  Maryland  in  their  then  late  controversy 
with  Governor  Eden,  respecting  his  claim  of  settling  these  same  kind  of  fees  by  proc- 
lamation, should  have  insisted,  that  they  could  be  considered  in  no  other  light  than  aa 
taxes  ;  and  yet,  that  in  the  passage  of  this  law,  directing  them  to  be  collected  and 
paid  into  the  treasury  for  no  avowed  or  conceivable  political  purpose,  it  should  not 
have  occurred  to  them,  that  this  partial  mode  of  taxation  w^as  in  direct  violation  of 
that  article  of  the  Declaration  of  Rights  which  declares,  "  that  the  levying  taxes  by 
the  poll  is  grievous  and  oppressive,  and  ought  to  be  abolished  ;  that  paupers  ought 


THE  CHANCELLOR'S  CASE.  621 

But,  upon  the  present  occasion,  it  is  that  portion  of  the  provi- 
sions of  this  article,  relating  to  judicial  salaries,  which  alone  claims 

not  to  be  assessed  for  the  support  of  government ;  but  every  other  person  in  the 
State  ought  to  contribute  his  proportion  of  public  taxes,  for  tlie  support  of  govern- 
ment, according  to  his  actual  worth,  in  real  or  personal  property  within  the  State ; 
yet  fines,  duties,  or  taxes  may  properly  and  justly  be  imposed  or  laid,  with  apolitical 
view,  for  the  good- government  and  benefit  of  the  communitj'." — [Sloane  v.  Pawlett, 
8  Mod:  13  ;  Vattel,  b.  2,  s.  240,  252.) 

Under  the  clause,  which  declares,  that  no  Chancellor  or  Judge  ought  to  receive 
fees  or  perquisites  of  any  kind,  it  is  evident,  that  at  least  as  regards  them,  justice 
must  be  administered  gratis,  however  much  or  improperly  it  may  be  otherwise 
encumbered  with  costs  and  expenses.  But,  as  has  been  said,  it  was  not  so  much  to 
diminish  the  expense,  as  to  prevent  the  corruption  of  justice,  that  tlie  judges  were 
prohibited  from  receiving  any  present,  or  fee  from  the  parties.  For,  upon  the  impar- 
tial administration  of  justice  depends  the  liberty  of  every  individual,  the  sense  which 
he  has  ofiiis  own  security.  In  order  to  make  every  individual  feel  himself  perfectly 
secure  in  the  possession  of  every  right  which  belongs  to  him,  it  is  not  only  necessary, 
that  the  judicial  should  be  separated  from  the  executive  power ;  but  that  it  should 
be  rendered  as  much  as  possible  independent  of  that  power.  The  judge  should  not  be 
liable  to  be  removed  from  his  office  according  to  the  caprice  of  that'power.  The  regu- 
lar payment  of  his  salary  should  not  depend  upon  the  good  vnW,  or  even  upon  the 
good  economy  of  that  power. — {Smith's  Wea.  Nat.  b.  5,  c.  \,pt.  2.) 

It  seems  to  be  a  generally  received  opinion,  that  the  Chancellor  and  Judges  have, 
each  of  them,  an  estate,  or  a  vested  interest  in  their  respective  salaries,  (Whittingion 
V.  Polk.  \  H.  ^  J.  236  ;  Coop.  Just.  599.)  This  estate  in  a  judicial  salarj'  is,  how- 
ever, one  of  a  verj'  peculiai-  character  ;  it  is  not  subject,  before  it  becomes  due,  to  be 
disposed  of  at  the  pleasure  of  the  holder.  It  is  like  a  limited  and  qualified  estate  in 
an  annuity.  As  where  an  annuity  charged  upon  land  was  granted  by  Oliver  to 
Emsonne,  in  consideration  of  his,  Emsonne's,  giving  his  counsel  to  Oliver;  it  was 
held,  that  the  trust  and  confidence  which  Oliver  reposed  in  Emsonne  for  his  advice, 
being  incidental  to  the  cause  for  which  the  annuitj'  was  granted  it  could  not  "be 
assigned  to  another  or  forfeited.  (Oliver  v.  Emsonne,  Dyer,  16.;  \  H.  Blac.  627, 
note  ;  Maund's  Case,  7  Co.  112  ;  Co.  Litt.  144  6.  note  1.)  So  that  looking  to  the  pecu- 
liar cause  of  the  grant  it  appears,  that  even  in  the  case  of  an  annuit\'  granted  by  one 
})erson  to  another,  the  grantee  may  have  vested  in  him  nothing  more  than  an  inaliena- 
ble and  qualified  estate. 

But  in  deciding  upon  the  nature  o(  a  public  grant,  the  great  object  of  public  policy 
in  making  the  grant  must  be  attended  to.  The  general  intent  pervades  the  whole  ; 
and  each  yearly  payment  of  the  salary  mu§t  be  subject  to  it.  The  public  has  a  deep 
interest  in  the  due  and  appropriate  application  of  judicial  salaries  as  well  as  in  their 
regular  continuance  and  payment ;  because  they  are  given  for  services  rendered  to 
the  State  of  the  most  precious  nature,  by  a  class- of  the  most  important  "  trustees  of 
the  public."  Such  salaries  are  granted  to  support  the  dignity  of  the  State,  and  the 
administration  of  justice;  and  therefore  no  judicial  salary  can  be  sold,  assigned,  mort- 
gaged, or  transferred,  either  by  the  act  of  the  part)',  or  by  operation  of  law  as  in  cases 
of  insolvency ;  because  the  public  policy  by  which  any  such  voluntarj'  or  involuntary 
alienation  is  prohibited  is  incidental  to  the  cause  for  which  it  is  granted  ;  and  cannot 
be  separated  from  it.  One  of  the  special  objects  in  giving  such  a  salary  is  to  enable 
the  judge  continually,  and  at  all  times  to  discharge  his  duties  to  the  public  without 
interruption  from  any  pecuniary  embarrassment ;  for,  although  mere  insolvency  can- 
not be  considered,  in  all  cases  even  as  a  deviation  from  dutj-,  much  less  a  crime  ;  yet 


622  '^HE  CHANCELLOR'S  CASE. 

our  special  attention.  It  is  declared,  "  that  salaries  liberal  but  not 
profuse  ought  to  be  secured  to  the  chancellor  and  the  judges."  The 
authors  of  this  article  were  perfectly  well  acquainted  with  the  con- 
dition of  this  country  under  the  colonial  monarchy.  The  Decla- 
ration of  Independence  had  proclaimed,  that  "  he  (the  British 
king,)  has  erected  a  multitude  of  new  offices,  and  sent  hither 
swarms  of  officers  to  harass  our  people,  and  eat  out  their  sub- 
stance." And  when  the  authors  of  this  article  meditated  on  the 
subject  of  judicial  salaries,  the  picture  of  the  past  oppressive  pro- 
digality, and  a  cheering  hope  for  the  future  were  before  them ;  the 
contrast  pressed  upon  their  mind^,  and  their  thoughts,  thus  influ- 
enced, were  happily  expressed  in  the  four  words,  "  liberal  but  not 
profuse.^"*  But  this  expression  gives  no  positive  direction.  It  merely 
indicates  an  opinion,  that  the  future  judicial  officers  of  the  State 
should  be  compensated  according  to  the  just  and  liberal  principles 
of  the  republic  ;  not  in  the  profuse  manner  in  which  they  had  been 
maintained  under  the  late  monarchy,  and  nothing  more.  It  lays 
down  no  positive  rule,  and  therefore  gives  no  command.  (A') 

The  salaries,  it  is  said  "  ought  to  be  secured."     It  will  be  suffi- 
cient to  observe  here,  that  the  word  "  ought "  frequently  occurs  in 


if  a  judge,  because  of  his  insolvency,  be  restrained  from  performing  the  labours 
assigned  to  him,  such  a  failure  of  duty  may  be  deemed  a  misbehaviour  in  office 
within  the  meaning  of  the  Constitution.  ( Grieslei/s  Case,  8  Co.  S2  ;  Crouch  v.  Mar- 
tin, 2  Vern.  595;  Milhwoldv.  Waldbank,  2  Ves.  23S ;  Flartyv.  Odium,  3  T.  i?.681; 
Ledderdale  v.  Montrose,  4  T.  R.  248;  Barunckv.  Reade,  1  H.  Blac.  627 ;  Arhucklev. 
Coivtan,  3  Bos.  ^  Pul.  322  ;  Stone  v.  Ledderdale,  2  Antr.  533  ;  Monys  v.  Leake,  S  T. 
R.  411 ;  Ex  parte  Parnell,  1  Swan.  436;  Pow.  Mort.  SO,  note  C. ;  1814,  ch.  113,  s.  4; 
Jlcl  Cong.  ISih  March,  1818,  ch.  IS,  s.  4  ;  Lmoe  v.  Moore,  1  McCord,  243.) 

(k)  "  Judges  (it  is  said  b}'  a  sensible  Reviewer,)  should  be  placed  above  pecuniary 
difficulties  ;  their  minds  should  not  be  diverted  from  their  important  duties,  by  the 
pinching  of  want,  or  the  necessity  of  devising  ways  and  means  to  eke  out  a  living 
for  their  families.  Such  a  situation  both  lessens  respectability  and  invites  temptation. 
Bring  the  administrators  of  the  law,  through  whose  sanctions  alone  the  sovereignty 
of  the  people  is  heard,  into  contempt,  and  the  law  itself  will  soon  become  odious — 
render  the  law  and  its  tribunals  odious,  and  you  prepare  the  people  to  despise  the 
yoke  and  to  embrace  any  change  which  would  afford  a  prospect  of  relief.  Let  it  be 
borne  in  mind  by  those  in  whose  hands  are  our  destinies,  our  legislators,  that  the  most 
distinguishing  and  delightful  characteristic  of  our  people,  is  their  cheerful  submis- 
sion to  the  law :  to  that  they  universally  bow  down  with  obedience,  and  upon  that 
foundation,  mainly,  stand  our  republican  institutions.  Ever}'^  thing  which  tends  to 
shake  it,  a  patiiot  should  deprecate ;  and  we  know  nothing  more  surely  calculated  to 
produce  that  lamentable  effect,  tlian  tlie  reduction  of  the  salaiics  of  the  judges  to  a 
bare  subsistence,  by  which  these  offices  will  ere  long  be  thrown  into  the  hands  of 
inferior  men,  or  will  render  tliose  of  a  superior  character  who  imprudently  accept 
them,  the  victims  for  life  of  debasing  want." — (3  Southern  Revieiv,  446.) 


THE  CHANCELLOR'S  CASE.  623 

this  Declaration  of  Rights,  and  is  always  used  in  the  imperative 
sense  of  the  word,  "  shall.''''  Thus,  it  is  said,  "  that  no  soldier 
ought  to  be  quartered  in  any  house,"  &c.  "  that  no  person  ought  to 
hold  at  the  same  time  more  than  one  office,"  &c.  The  manifest 
and  settled  meaning  of  which  is,  "  that  no  soldier  s/w//,"  &c.  ; 
"  that  no  person  shall,''  &,c.  Such  also  is  the  meaning  of  the 
word  ^^  ought"  in  the  article  under  consideration;  the  clear  sense 
of  it  is,  that  the  salaries  "  shall  be  secured,"  &c. 

It  is  said,  that  the  salary  shall  "be  secured  to  the  chancellor;" 
that  is,  according  to  the  universally  received  meaning  of  the  word 
"  secured,"  the  salary  shall  be  "  ascertained,  made  certain,  put  out 
of  hazard,  protected,  made  safe,  and  insured,"  to  the  chancellor. 
And  even  yet  more ;  it  is  said,  that  salaries  shall  be  secured  to 
the  chancellor  and  judges  ^'during  the  continuance  of  their  com- 
missions." Thus,  after  expressing  an  opinion,  that  the  salary 
should  be  just  in  amount,  and  declaring,  that  it  shall  he  secured, 
the  term  and  duration  of  that  security  is  distinctly  specified,  in  a 
manner  which  it  is  utterly  impossible  to  pervert,  or  to  misunder- 
stand. The  English  statute  of  the  year  1700,  as  we  have  seen, 
had  declared,  that  the  judges'  salaries  should  be  ^^ascertained  and 
established."  Had  this  article  said  nothing  more  than,  that  the 
salary  should  be  "  secured,"  it  might  have  been  considered  as  ambi- 
guous ;  and  thtre  might  have  been  found  some  grounds  on  which 
plausibly  to  contend,  that  the  salary  was  sufficiently  "  secured,"  if 
it  w^ere  fixed  by  the  legislature  from  one  term  of  years  to  another, 
or  from  year  to  year.  But  all  such  obscurity  has  been  completely 
removed  by  this  distinct  specification  of  the  duration  of  the  secu- 
rity intended.  The  security  and  certainty  of  the  salary  is  to  be 
CO- extensive  with  that  of  the  commission ;  or,  in  the  words  of  the 
article,  which  cannot  be  made  plainer,  the  salary  is  to  be  secured 
to  the  chancellor  "  during  the  continuance  of  his  commission." 
Let  us  proceed  again  with  our  commentary. (/) 

(0  In  England  there  are  two  modes  of  constituting  a  chancellor,  either  by  letters 
patent,  which  is  rarely  used,  or  by  delivery  of  the  great  seal,  which  delivery  is  to  be 
entered  upon  record.  But  it  must  be  recollected,  that  if  the  great  seal  be  delivered 
by  the  king,  although  the  person  to  whom  it  is  so  delivered  is  thereby  constituted 
Chancellor,  yet  he  cannot  alone  seal  WTits  therewith,  or  at  all ;  except  in  the  pre- 
sence of  some  of  the  masters  in  chancery,  until  he  has  regularly  taken  die  oaths  of 
office.  And  it  is  said,  tliat  it  is  not  inconsistent  for  tlie  Lord  Chancellor  also  to  hold 
at  the  same  time  the  office  of  Chief  Justice  of  the  King's  Bench. — (1  Harr.  Pra. 
Chan.  6  8;  1  Newl.  Chan.  1 ;  4  Inxt.  87;  3  Blac.  Com.  by  Chitly,  47.) 

"In  all  the  king's  governments  so  called,  (of  the  colonies,  said  Governor  Pownal 


€24  THE  CHANCELLOR  S  CASE. 

A  salary,  just  in  amount,  shall  be  secured  to  the  Chancellor 
during  the  continuance  of  his  commission,  it  is  said,  "  in  such 


in  1768,)  the  governor,  or  the  governor  and  council  are  the  chancellor,  or  judges 
of  the  court  of  chancery.  But  so  long  as  I  understand  that  the  governor  is,  by  his 
general  instruction,  upon  sound  principles  of  policy  and  justice,  restrained  from 
exercisino-  the  office  of  judge  or  justice  in  his  own  person,  I  own  I  always  consid- 
ered the  governor,  taking  up  the  office  of  chancellor,  as  a  case  labouring  with  inex- 
plicable difficulties.  How  unfit  are  governors  in  general  for  this  high  office  of  law ; 
and  how  improper  is  it  that  governors  should  be  judges,  where  perhaps  the  conse- 
quence of  the  judgment  may  involve  government,  and  the  administration  thereof,  in 
the  contentions  of  parties.  Indeed  the  fact  is,  that  the  general  diffidence  of  the  wis- 
dom of  this  court  thus  constituted,  the  apprehension  that  reasons  of  government  may 
mix  in  with  the  grounds  of  the  judgment,  has  had  an  effect  that  the  coming  to  this 
court  is  avoided  as  much  as  possible,  so  that  it  is  almost  in  disuse,  even  where  the 
establishment  of  it  is  allowed.  But  in  the  charter  governments,  (New  England  and 
Pennsylvania,)  they  have  no  chancery  at  all."  "  This  introduced  a  practice,  (in 
New  England,)  of  petitioning  the  legislative  courts  for  relief,  and  prompted  those 
courts  to  interpose  their  autliority.  These  petitions  becoming  numerous,  in  order  to 
give  the  greater  despatch  to  such  business,  the  legislative  courts  transacted  such 
business  by  orders  or  resolves,  without  the  solemnity  of  passing  acts  lor  such  pur- 
poses ;  and  have  further  extended  this  power  by  resolves  and  orders,  beyond  what  a 
court  of  chancery  ever  attempted  to  decree,  even  to  the  suspending  of  public  laws, 
which  orders  or  resolves  are  not  sent  home  for  the  royal  assent." — (Pou-vi.  Mm. 
Colo.  110;  See  Constitution  of  New  Jersey,  art.  8.) 

Upon  a  complaint  made,  on  the  6th  of  November  1735  to  the  General  Assembly 
of  New  York,  they,  among  other  things,  resolved,  "  that  a  court  of  chancery,  in 
this  province,  in  the  hands  or  under  tlie  exercise  of  a  governor,  without  consent  in 
General  Assembly,  is  contraiy  to  law,  unwarrantable,  and  of  dangerous  consequence 
to  the  liberties  and  properties  of  the  people." — (1  Smith's  His.  N.  York,  386.) 

Under  the  proprietary  government  of  Maryland  the  chancellor  of  the  province 
was  sometimes  constituted  by  a  formal  commission  from  the  Lord  Proprietary ; 
(  Chan.  Proc.  lib.  P.  L.fol.  48S,  717.)  but  most  usually,  as  it  would  seem,  by  a  delivery 
of  the  great  seal  by  tlie  Lord  Proprietary  in  person,  or  by,  or  in  the  presence  of  the 
council.  The  governor  for  the  time  being  was,  in  several  instances,  by  the  same 
commission  also  constituted  chancellor  and  keeper  of  tlie  great  seal  of  the  Province. 
The  first  provincial  governor,  by  his  commission  bearing  date  on  the  15th  of  April 
1C37,  was  constituted  governor,  lieutenant  general,  chief  captain,  and  commander, 
as  well  by  sea  as  by  land,  and  also  chancellor,  chief  justice,  and  chief  magistrate 
within  the  province,  (1  Boz.  His.  Mary.  291.)  A  similar  commission  was  granted 
by  the  Lord  Proprietary  on  the  ISth  of  September  1644.  {Land  Records,  lib.  1, 
folio  195.) 

But  although  for  some  time  after  the  settlement  of  tlie  country,  the  governor  was 
invested  with  a  variety  of  military  and  civil  oifices,  yet  he  was  not  permitted  to  act 
of  himself  in  all  respects  and  alone  in  any  one  of  them.  As  governor  there  were 
few  powers  which  he  could  exercise  without  the  advice  and  consent  of  the  council 
who  were  placed  about  him ;  and  as  chancellor  he  could  do  no  act  but  as  a  court 
sitting  with  his  assistants.  (1  //.  ^  McH.  6  ^  165;  AH.  Sf  McH.  477.)  In  a  peti- 
tion in  tlie  case  of  Nicholas  Painter  and  wife  against  Samuel  Lane  in  chancery 
addressed  to  the  Lord  Proprietary  in  June  1681'  it  is  said,  "  that  the  court  of  chan- 
cery is  and  ought  to  be  always  open  as  to  Uie  proceedings  therein  ;  but  your  lordship 


THE  CHANCELLOR'S  CASE.  625 

manner,  and  at  such  time  as  the  legislature  shall  hereafter  direct, 
upon  consideration  of  all  the  circumstances  of  the  State.'"'     Thus, 

having;  not  yet  empowered  your  chancellor  or  chief  justice  of  your  said  court  to 
answer  petitions  or  make  orders  touching  the  proceedings,  as  is  used  in  England, 
without  a  full  court  of  four  at  the  least ;  5-our  petitioners  are  therefore  necessitated  to 
apply  themselves  to  your  lordship  and  humbly  pray,  that  your  lordship  would  please 
to  order  that  the  defendant  may  put  in  his  answer  by  a  certain  day,"  &c.  Which 
was  accordingly  ordered  by  the  lord  proprietary  himself  (  Chan.  Froc.  lib.  C.  D. 
fol.  306.)  But  it  appears,  that  William  Holland  was  by  a  commission  from  the  lord 
proprietary,  under  his  great  seal  at  arms,  bearing  date  on  the  27th  of  February  1719, 
attested  by  his  governor,  constituted  chancellor  of  the  province,  with  full  power  to 
do,  perform,  hear  and  determine  all  such  matters  and  things  as  to  the  ofiice  of  chan- 
cellor of  right  belonged  or  appertained.  After  which  the  chcmcellor  of  Mar}'land 
always  sat  as  sole  judge,  without  assistants;  and  his  court  was  thenceforward 
in  all  respects  as  accessible  for  all  persons  as  the  chcincery  court  of  England. — 
( Chan.  Proc.  lib.  P.  L.fol.  4SS,  717.) 

During  the  short  time  that  the  government  of  the  province  was  taken  immediately 
into  the  hands  of  the  Idng,  it  does  not  appear  how  the  chancellor  was  appointed. 
Although  it  seems  to  have  been  most  usual  to  constitute  the  same  person  both 
governor  and  chancellor,  as  in  the  case  of  John  Hart  who  was  governor  and  chan- 
cellor, (  Chan.  Proc.  lib.  P.  L.fol.  74,  &c.)  j^et  it  was  riot  always  done,  for  it  appears, 
that  different  persons  were  sometimes  appointed  to  fill  each  office,  (1697,  ch.  6,  s.  6,) 
but  however  that  might  have  been,  it  is  certain,  that  the  t\vo  offices  were  always  con- 
sidered as  being  entirely  separate  and  distinct  in  their  nature. 

It  appears,  tliat  Robert  Eden,  the  last  "provincial  governor  of  Marj'Iand,  (who  was 
brother-in-law  of  the  then  Lord  Baltimore,  and  a  lieutenant  in  the  Coldstream  regi- 
ment of  guards,)  was  commissioned  as  governor,  with  the  approbation  of  the  king, 
(as  was  required  by  the  statute  of  7  4"  8  W.  3,  c.22,  s.  16,)  by  the  lord  proprietary; 
which  commission  he  produced  to  the  provincial  council  who  thereupon  administered 
to  him  the  oaths  appointed  to  be  taken  by  the  governor.  Immediately  after  which 
his  predecessor,  Horatio  Sharpe,  delivered  to  him  the  great  seal  of  the  province, 
whereupon  the  oath  of  chancellor  was  administered  to  him,  Eden,  by  the  members 
of  the  council  then  present ;  all  of  which  was  entered  of  record  in  the  book  of 
the  council  proceedings. — ( Coun.  Pro.  lib.  N.  folio  32,  4-5,  47.) 

By  the  Declaration  of  Rights  it  is  declared,  that  the  chancellor  and  judges  ought 
to  hold  commissions  during  good  behaviour ;  and  the  Constitution  also  declares,  that 
they  shall  hold  their  commissions  during  good  behaviour ;  that  the  governor  for  the 
time  being,  with  the  advice  and  consent  of  the  council,  may  appoint  the  chancellor 
and  all  judges  ;  that  the  council  shall  have  power  to  make  the  great  seal  of  this 
State,  which  shall  be  kept  by  the  chancellor,  for  the  time  being,  and  affixed  to  all  laws, 
commissions,  grants  and  other  public  testimonials  as  has  been  heretofore  practised  in 
this  State  ;  that  every  bill  passed  by  the  General  Assembl}%  when  engrossed,  shall  be 
presented  by  the  speaker  of  the  House  of  Delegates  in  the  Senate  to  the  governor 
for  the  time  being,  who  shall  sign  the  same  and  thereto  afjix  the  great  seal,  in  the  pre- 
sence of  the  members  of  both  houses ;  and  that  all  public  commissicms  and  grants  run 
thus :  "  The  State  of  Maryland,"  &,c.  and  shall  be  signed  by  the  governor,  and 
attested  by  the  chancellor  with  the  seal  of  the  State  annexed,  except  military  and 
militia  commissions,  which  shall  not  be  attested  by  the  chancellor,  or  have  the  seal 
of  the  State  annexed. 

Some  of  these  constitutional  provisions  are  apparently  incompatible  with  each 
other.     It  is  declared,  that  the  great  seal  shall  be  kept  hy  the  chancellor  :  and  also, 

79 


626  'fHE  CHANCELLOR'S  CASE. 

after  having  conveyed  an  adequate  idea  of  what  should  be  the 
amount  of  the  salary ;  and  having  imperatively  directed  that  it 
shall  be  provided;  and  when  provided,  that  it  shall  be  secured; 
and  then,  to  remove  all  ambiguity,  having  designated  the  duration 
of  that  security  ;  it  would  seem,  that  nothing  was  left  for  implica- 
tion ;  and  consequently,  that  nothing  further  was  necessary  to  be 
.said  upon  the  subject.  But,  had  the  clause  stopped  at  that  point, 
it  might  have  been  asked.  In  what  manner  shall  provision  be  made 
for  the  payment  of  this  salary  ?  .Under  the  government  just  then 
abolished,  judicial  salaries  were  provided  for  in  various  ways. 
Sometimes  "in  such  manner  and  at  such  time"  as  the  lord  pro- 
prietary ;  as  the  king ;  as  the  parliament ;  as  the  colonial  legisla- 
ture ;  or  as  one  of  the  branches  of  the  colonial  legislature  thought 
proper  to  direct ;  and  that  too,  in  most  instances,  without  the 
least  "  consideration  of  the  circumstances  of  the  State." 

But,  this  last  provision  has  removed  even  this  doubt,  by  expressly 
investing  the  legislature  with  the  power  to  create,  or  to  set  apart 
any  particular  fund,  and  to  make  appropriations,  in  such  manner  as 

that  the  governor  shall  affix  it  to  all  engrossed  bills,  &c. ;  consequently,  during  the 
time  that  the  governor  has  the  great  seal  in  his  possession,  for  that  purpose,  it  can- 
not be  said  to  be  kept  by  the  chancellor.  The  chancellor  is,  therefore,  the  keeper 
of  the  great  seal  at  all  times,  and  for  all  purposes  ;  except  for  that  particular  occa- 
sion of  ainxing  it  to  engrossed  bills  when  it  is  taken  possession  of  and  kept  by  the 
governor.  (Dr.  Bonham's  Case,  8  Co.  234.)  It  is  however  declared,  that  all  public 
commissio7is  shall  be  signed  by  the  governor,  and  attested  by  the  chancellor  with  the 
seal  of  the  State  annexed.  But  it  is  obvious,  that  the  chancellor  himself  can  have 
no  such  commission,  since  it  would  be  absurd  to  direct,  that  a  commission  should  be 
made  to  him  signed  by  the  governor,  and  attested  by  himself  with  the  great  seal 
annexed  of  which  he  himself  is  declared  to  be  the  keeper.  And  although  it  is  also 
declared,  that  the  great  seal  shall  be  affixed  to  all  commissions  as  heretofore  prac- 
tised ;  and  it  may  have  been  the  practice,  in  some  cases,  to  constitute  the  provincial 
chancellor  by  commission  ;  yet  it  was  a  commission,  not  under  the  great  seal  of  the 
province,  but  under  the  lord  proprietaiy's  "  hand  and  greater  seal  at  arms,"  like 
that  of  the  commission  to  the  governor. — (  Conn.  Pro.  lib.  N.  folio  45.) 

The  chancellor  of  Maryland,  therefore,  cannot,  according  to  the  provisions  of  the  form 
of  government  of  the  State,  be  constituted  by  letters  patent  or  a  public  commission  in 
like  manner  as  the  other  judicial  officers  of  the  State  are  constituted.  But,  when  the 
office  of  chancellor  becomes  vacant,  the  great  seal  is  taken  into  custody  and  kept  by 
the  governor ;  and  when  a  person  is  appointed  to  fill  the  vacant  oflice,  he  is  consti- 
tuted chancellor  by  having  his  appointment  recorded  in  the  council  proceedings, 
{Co7ist.  art.  26;)  and  by  having  the  prescribed  oaths  of  office  administered  to  him, 
by  the  governor,  at  the  time  of  delivering  to  him  the  great  seal  of  the  State,  (Feb- 
ruary 1777,  ch.  5,  s.  2  ;  Votes  Sf  Pro.  II.  Del.  14/A  March,  1777.)  The  chancellor's 
holding  of  a  commission,  therefore,  must  necessarily  consist  merely  in  the  holding  ot 
the  great  seal  under  the  authority  of  his  appointment  as  recorded  in  the  council  pro- 
ceedings; and  Urns,  in  this  respect,  and  in  point  of  form  at  least,  it  differs  from  aU 
other  commissions  spoken  of  in  the  Constitution. 


THE  CHANCELLOR'S  CASE.  627 

they  may  think  proper,  for  the  payment  of  this  peculiarly  and 
clearly  defined  salary  of  a  chancellor  or  a  judge.  But,  the  amount 
of  the  salary  being  once  designated  by  the  General  Assembly, 
whether  by  law,  resolution,  or  in  any  other  legislative  way,  that 
amount,  so  designated,  is,  by  this  article  of  the  Declaration  of 
Rights,  secured  during  the  continuance  of  the  commission  ;  and 
nothing  remains  at  the  discretion  of  the  legislature  but  the  mode 
of  making  provision  for  its  payment. 

If  the  correctness  and  utility  of  provisions,  such  as  these,  con- 
cerning judicial  salaries,  could  be  supposed  to  stand  in  need  of  any 
testimonials  in  their  favour  from  actual  practice ;  or,  if  their  per- 
spicuity could  be  made  more  clear  by  illustrative  examples,  the 
immediately  antecedent  occurrences  in  our  own  country  v/ould  fur- 
nish the  most  ample  exposition  of  their  bearing  and  tendency ; 
and  the  most  unanswerable  proofs  of  their  utility  and  value.  The 
colonial  Congress  of  1774,  that  most  illustrious  body  of  men, 
deliberately  and  solemnly  declared  to  their  then  king,  that  in  the 
colonial  courts  of  admiralty  justice  had  been  perverted,  because 
the  judges  were  "  empowered  to  receive  their  salaries  and  fees 
from  the  effects  condemned  by  themselves ;"  and  they  further 
declared,  that  the  administration  of  justice,  in  the  colonial  courts 
of  common  law,  was  no  less  partial  and  impure,  iccawse  the  judges 
of  those  courts  had  been  "  made  entirely  dependent  on  one  part  of 
the  legislature  for  their  salaries,  as  well  as  for  the  duration  of  their 
commissions."  And,  among  the  causes  which  impelled  us  to  the 
separation  from  the  mother  country,  it  is  charged,  that  the  king 
had  made  the  judges  dependent  on  his  will  alone  for  "  M^  amount 
and  payment  of  their  salaries. ^^ 

These  are  some  of  the  great  lessons  of  our  revolution.  They 
were  among  the  axioms  deemed  unquestionable  in  those  times.  It 
had  been  sorely  and  deeply  impressed  upon  the  minds  of  all  the 
people  of  America,  that  a  dependent  judge  was  the  fit  instrument 
of  an  oppressor;  that  an  independent  judge  was  a  proper  and 
necessary  guardian  of  a  freeman's  rights;  that  judges,  like  otlier 
men,  were  frail,  and  ahvays  found  to  be  entirely  subservient  to 
those  on  whom  they  were  dependent  for  their  salaries,  and  their 
bread ;  and  tbat  wise  and  salutary  laws  were  a  mocker^',  without 
firm,  and  impartial  judges  to  administer  them. 

Having  thus  traced  the  origin,  history,  and  nature  of  the  secu- 
rity of  judicial  salaries  ;  and  having  carefully  considered  that  article 
*of  the  Declaration  of  Rights  in  which  their  security  is  particularly 


628  THE  CHANCELLOR'S  CASE. 

provided  for,  declared,  and  defined  ;  as  well  according  to  its  general 
character,  as  the  meaning  of  each  phrase  and  sentence ;  let  us 
now  inquire  what  has  been  the  operation  of  those  constitutional 
provisions,  and  the  actual  practice  under  them,  from  the  time  the 
government  of  the  Republic  was  organized,  down  unto  the  twenty- 
sixth  day  of  February  last,  when  the  unhappy  deviation  complained 
of  took  effect. 

It  should  be  recollected,  that  soon  after  the  commencement  of 
our  revolutionary  struggle,  the  proprietary  government  of  Maryland 
ceased  to  exist ;  and,  during  a  period  of  about  two  years,  was 
succeeded  by  a  government  made  up  of  mere  voluntary  associa- 
tions ;  of  district  and  county  committees,  arranged,  by  common 
consent,  under  the  superintendence  of  a  General  Convention  and 
a  Council  of  Safety.  That  by  the  direction  of  one  of  those  con- 
ventions, a  new  convention  was  elected  and  assembled  in  August, 
1776,  "  for  the  express  puqiose  of  forming  a  new  government  by 
the  authority  of  the  people  only,"  who,  in  the  name  of  the  people 
drew  up  and  adopted,  "  the  Declaration  of  Rights,  and  the  Con- 
stitution and  form  of  Government  of  the  State  of  Marjdand."  The 
manner  in  which  this  new  government  was  organized,  and  when, 
and  how  its  principles  began  to  operate,  should  also  be  recollected. 

The  General  Assembly,  to  be  called  together  under  the  new 
constitution,  and  which  met,  for  the  first  time,  on  the  5th  day  of 
February,  1777,  was  charged  w^ith  the  creation,  and  establishment 
of  the  executive,  and  judicial  departments.  The  governor  and 
council  were  elected  on  the  14th  February,  1777,  but  did  not 
qualify  until  the  20th  of  March  following.  After  which,  the  Coun- 
cil of  Safety,  which  had  exercised  both  executive  and  judicial 
functions  in  cooperation  with  the  General  Assembly,  was  dis- 
solved ;  and,  all  its  authority,  except  the  power  of  banishment,  was 
lodged  with  the  newly  formed  executive.  The  Chancellor,  the 
Judges  of  the  General  Court ;  and  of  the  Admiralty  Court ;  the 
Justices  of  the  Peace,  who  formed  the  County  Courts ;  and  the 
Attorney  General,  were  appointed  by  the  legislature  on  the  3d  of 
April  1777.  An  act  was  passed  declaring,  that  the  courts  of  jus- 
tice should  be  opened  on  the  first  of  July  in  the  same  year ;  but 
the  Court  of  Chancery  was  not,  in  all  respects,  accessible  to  suitors 
until  some  time  after.  It  was  determined,  at  this  first  session  of 
the  Assembly,  that  the  Court  of  Appeals  should  be  constituted  of 
five  distinct  judges,  who,  owing  to  the  circumstances  of  the  State, 
were  not  appointed  by  the  legislature  until  the  12th  of  December, 


THE  CHANCELLOR'S  CASE.  629 

1778 ;  but  the  act  authorizing  them  to  appoint  their  clerk  did  not 
pass  until  the  5th  of  May,  1780.  Hence  it  was  not  until  after  that 
period, .that  the  judicial  department  could  be  said  to  be  completely, 
and  in  all  its  branches,  prepared  and  ready  for  the  administration 
of  justice. (m) 

But,  this  government  was  framed  during  the  heat  of  a  most  dis- 
tressing and  perilous  war ;  when  the  movements  of  the  best  estab- 
lished political  institutions  inight  have  been  interrupted  by  the  rude 
collisions  of  the  times.  It  could  not,  therefore,  be  supposed,  that 
every  principle  of  the  newly  written  constitution  was,  at  once, 
fully  to  operate  ;  and,  that  all  its  provisions  were  to  be,  from  the 
very  outset,  exactly  observed.  Maryland,  never  having  been  the 
immediate  seat  of  war,  during  our  revolutionary  conflict,  had  not 
felt  any  of  those  dreadful  calamities,  that  are  always  exhibited  on 
such  a  theatre.  But,  the  people  were  exposed  to  frequent  preda- 
tory incursions ;  and,  in  other  respects,  had  their  full  share  of 
burthens  and  sufferings. 

After  the  disastrous  battle  of  Camden,  when  the  enemy,  flushed 
with  victory,  began  his  march  towards  this  State,  all  its  energies 
were  aroused,  and  all  its  resources  called  forth  to  meet  and  repel 
the  approaching  danger.  The  government  was  put  into  a  condi- 
tion to  disperse,  to  fly,  and  to  reassemble  in  a  place  of  safety. 
The  payment  of  all  drafts  upon  the  treasury  was  prohibited,  that 
the  public  finances  might  be  husbanded  for  the  occasion.  It  was 
resolved,  that  a  request  be  sent  to  the  general  court  to  adjourn ; 
the  expected  interruptions  of  the  usual  and  periodical  movements 
of  judicial  proceedings  were  provided  against ;  and  the  executive 
was  armed,  for  the  season,  with  a  vigour  far  beyond  the  temperate 
restrictions  of  the  newly  adopted  constitution.  But,  fortunately, 
this  awfully  threatening  cloud  broke  before  it,  reached  us  ;  and  we 
suffered  nothing  from  the  bursting  of  that  storm,  the  terrifying 
advances  of  which,  had  stimulated  every  nerve  in  the  State.  The 
capture  of  the  British  army  at  Yorktown  relieved  our  apprehen- 
sions, without,  however,  allowing  any  immediate  relaxation  of  our 
efforts.  Better  times  were  approaching,  but  their  tardy  develop- 
ment was  accompanied  with  such  alternations  of  hope,  doubt,  and 
fear,  as  to  forbid  those  retrenchments,  which  would  certainly  have 


(m)  For  what  is  stated  in  this  paragraph,  see  the  Votes  and  Proceedings  of  the 
two  Houses  of  the  General  Assembly  ;  and  the  acts  of  February  1777,  ch.  8  §■  15; 
October  1777,  ch.  19,  and  March  1780,  ch.  23. 


630  THE  CHANCELLOR'S  CASE. 

been  made  on  a  strong  assurance  of  peace.  The  signature  of  the 
preliminary  treaty  of  peace  was  not  formally  announced  to  the 
legislature  until  the  8th  day  of  May,  1783.(7?) 

The  independence  and  freedom  of  Maryland  were  thus  finally 
recognized  and  established  ;  but  the  State  was  left  in  debt,  and  in 
poverty.  We  commenced  a  new  era,  with  a  new  set  of  political 
institutions,  founded  on  principles  original  in  themselves,,  or  never 
before  so  connected  and  tried.  The  several  public  functionaries 
were  called  to  their  respective  stations ;  and  the  constitutional 
principles  and  restrictions,  applicable  to  each,  began  to  operate. 
Maryland,  with  her  confederates,  then,  but  not  until  then,  set  out 
upon  that  career  of  prosperity  to  which  there  is  no  parallel  among 
the  nations  of  the  earth. 

Hence  it  appears,  that  our  government  was  not  brought  forth  at 
once,  complete  in  all  its  parts ;  that  it  was  not  the  work  of  one 
election,  of  one,  or  of  two  sessions  ;  of  one  or  two  years ;  but, 
that  it  was  created  and  established  by  parts,  as  times,  means,  and 
circumstances  would  allow.  But,  the  matter,  now  under  consider- 
ation, does  not  involve  an  inquiry  into  the  manner  in  which  all 
the  several  parts,  and  provisions  of  our  constitution  were  put  into 
operation.  The  present  subject  necessarily  carries  our  investiga- 
tions no  further  than  to  the  judiciary ;  and  to  but  one  single  ques- 
tion relative  to  that  department ;  that  is,  when  and  how  those  judi- 
cial salaries  were  ascertained  and  setded,  which  are  required  by 
the  Declaration  of  Rights  to  be  secured  to  the  chancellor  and  to 
the  judges  during  the  continuance  of  their  commissions. 

A  salary  is  a  compensation  for  services  rendered ;  it  is  the  peri- 
odical payment  of  a  certain  value,  in  moneys  for  work  and  labour 
done.  The  provision  of  the  Declaration  of  Rights,  which  com- 
mands the  legislature  to  secure  to  the  chancellor  and  judges  their 
salaries,  must  have  been  predicated  upon  the  capacity  of  the  State 
to  effect  the  security  required.  If  no  revenue  could  be  raised,  in 
money,  no  salary  could  be  paid  in  money.     And,  if  the  money, 


(n)  The  battle  of  Camden  was  fought  on  the  16th  of  August  1780  ;  and  the  British 
army  was  captured  at  Yorktown  on  the  19th  of  October  17S1.  (2  Ram.  His.  U.  S. 
349  8;  454  ;  Sec  the  Votes  and  Procccdinscs  of  the  House  of  Delegates  of  the  M  of  Jan- 
uary, the  -Id  February,  and  the  25th,  29/A,  and  30ih  of  May,  and  the  9th  of  June  of  the 
year  17S1  ;  the  loth  of  May  17S2  ;  and  the  8th  of  May  1783 ;  vnih  the  acts  of  Slay  1781, 
ch.  1,  5, 12  and  13,  and  November  17Sl,c/j.  5.)  The  necessity  of  immediatel)^  reinforc- 
ing the  army  and  filling  its  ranks  seems  to  have  been  deemed  so  urgent,  that  the 
acceptance  of  able  bodied  slaves  as  recruits  was  authorized  with  the  consent  of  the 
owner.— ( October  1780,  ch.  43,  s.  4  ;  2  life  J.  Jay,  31.) 


THE  CHANCELLOR'S  CASE.  631 

or  the  circulating  medium  of  the  country  had  no  value  ;  or  a  value 
continually  fluctuating,  and  which  it  was  impossible  to  ascertain, 
it  would  be  impossible  to  fix  and  secure  a  salary  of  any  value  to 
any  officer ;  since  there  was  not  any  such  money  or  standard  by 
means  of  which  any  amount  in  value  could  be  ascertained  and 
secured.     These  propositions  are  self-evident. 

The  salaries  of  the  chancellor  and  judges  were  not  secured,  as 
required  by  the  Declaration  of  Rights,  until  the  year  1785.  The 
causes  of  their  not  being  so  constitutionally  secured,  before  that 
period,  were  the  fluctuation  and  depreciation  of  the  circulating 
medium  of  the  country :  the  actual  poverty  of  the  State  ;  and  the 
very  greatly  embarrassed  condition  of  its  finances.  These  facts 
shall  be  established ;  and  it  will  then  be  shown,  that  the  General 
Assembly,  themselves,  referred  to  those  circumstances  as  the  foun- 
dation of  their  reasons  for  not  securing  the  salaries  of  the  chancel- 
lor and  judges,  as  they  were  required  to  do  by  the  Declaration  of 
Rights. 

During  the  first  nine  years  of  the  republic  the  salaries  of  the 
chancellor  and  judges  were,  none  of  them,  ascertained  and 
secured,  according  to  the  Declaration  of  Rights.  They  were  all 
alike,  settled  by  annual  appropriations,  given  at  the  pleasure  of  the 
legislature ;  at  first,  by  mere  resolutions  ;  and  then  by  the  bill  for 
the  payment  of  the  civil  list ;  and  their  amount  varied  accordino-  to 
the  opinions  of  the  legislature,  and  the  circumstances  of  the  State. 
In  the  year  1777,  soon  after  a  chancellor  was  appointed,  it  was 
directed,  that  a  yearly  salary  should  be  paid  to  him  at  the  rate  of 
three  hundred  pounds  current  money.  For  the  year  1778  he  was 
to  receive  a  yearly  salary,  of  seven  hundred  and  Jifty  pounds  com- 
mon money.  It  was  declared,  that  for  the  year  1779  he  should  be 
allowed  tivelve  hundred  and  Jifty  pounds.  For  the  year  1780  it 
was  determined,  that  a  salary  of  twelve  thousand  five  hundred 
pounds  per  annum  should  be  allowed  the  chancellor.  For  the 
year  1781  his  salary  was  fixed  at  six  hundred  pounds,  to  be  paid  in 
Spanish  milled  dollars  at  seven  shillings  and  sixpence  each,  or  in 
gold,  or  other  silver  in  proportion,  or  in  hills  of  credit  at  the  pass- 
ing value.  The  provision  for  the  payment  of  judicial  salaries, 
during  each  of  these  five  first  years,  was  made  simply  by  a  resolu- 
tion passed  at  the  last  session  of  each  previous  year.  As  a  com- 
pensation to  the  chancellor,  for  his  services  for  the  year  1782,  he 
was  to  be  paid  seveji  hundred  and  ffty  pounds  in  bills  of  credit  of 
the  last  emission  at  par,  or  in  wheat,  at  seven  shillings  and  six- 


632  THE  CHANCELLOR'S  CASE. 

pence  per  bushel.  For  the  year  1783  his  compensation  was  fixed 
at  six  hundred  pounds.  For  the  year  ]784  it  was,  in  like  manner, 
settled  at  six  hundred  j^ounds  ;  and  it  was  declared,  that  for  the 
year  1785,  the  chancellor  shall  be  allowed  a  salary  of  six  hundred 
and  fifty  poimds  current  money.  The  provision  for  the  payment 
of  the  salaries  of  the  chancellor  and  judges,  for  each  of  those  four 
years,  was  made  by  an  act  passed  annually,  and  usually  entitled 
"  an  act  to  settle  and  pay  the  civil  list."(o) 

Hence,  it  appears,  that  during  a  period  of  nine  years,  all  judi- 
cial salaries  were  in  a  most  unstable,  and  insecure  condition.  The 
chancellor's  salary,  within  that  time,  fluctuated  from  three  hundred 
pounds  to  twelve  thousand  five  hundred  pounds,  in  nominal  amount; 
and,  except  for  the  years  1783  and  1784,  it  was  continued  at  the 
same  amount  no  two  years  in  succession.  The  causes  of  these 
variations,  and  of  this  uncertainty,  will  be  found  in  the  then  con- 
dition of  the  circulating  medium ;  ^nd  in  the  low,  distracted  state 
of  the  public  finances  ;  not  in  any  mere  caprice  of  the  legislature ; 
or  in  any  strange  whims  of  theirs  about  the  court  of  chancery ;  for, 
during  that  period,  the  court  continued  its  course  steadily,  and  was 
then  acknowledged  to  be  one  of  the  most  valuable  tribunals  of 
Maryland. 

"  These  United  States  (said  the  Congress  of  the  Union)  having 
been  driven  into  this  just  and  necessary  war,  at  a  time  when  no  regu- 
lar civil  governments  were  established  of  sufficient  energy  to  enforce 
the  collection  of  taxes,  or  to  provide  funds  for  the  redemption  of 
such  bills  of  credit  as  their  necessities  obliged  them  to  issue,  and 
before  the  powers  of  Europe  were  sufficiently  convinced  of  the 
justness  of  their  cause,  or  of  the  probable  event  of  the  contro- 
versy, to  afford  them  aid  or  credit ;  in  consequence  of  which,  their 
bills  increasing  in  quantity  beyond  the  sum  necessary  for  the  pur- 
pose of  a  circulating  medium,  and  wanting  at  the  same  time  spe- 
cific funds  to  rest  on  for  their  redemption,  they  have  seen  them 
daily  sink  in  value,  notwithstanding  every  effort  that  has  been  made 
to  support  the  same,  insomuch,  that  they  are  now  passed  by  com- 
mon consent,  in  most  parts  of  these,  United  States,  at  least  thirty- 
nine  fortieths  below  their  nominal  value,  and  still  remain  in  a  state 

(o)  Resolutions  of  the  14th  of  April  1777;  the  16th  of  December  1777;  the  12th  of 
December  1778 ;  the  29th  of  December  1779,  by  which  also  the  Chancellor  was 
allowed  £875  for  his  past  services  of  tliat  year  ;  and  the  6th  of  Januaiy  1781 ;  and 
the  acts  of  November  1781,  ch.  29;  November  1782,  ch.  28;  November  1783,  ch.  31 ; 
and  November  17S4,  ch.  68. 
*. 


THE  CHANCELLOR'S  CASE.  (,33 

of  depreciation,  whereby  the  community  suffers  great  injustice^  t/ie 
■public  finances  are  deranged^  and  tlie  necessary  dispositions  for  tlie 
defence  of  tlie  country  are  much  impeded  and  jjerplexed.^^  Such 
was  the  declaration  of  Congress  in  March,  1780,  the  correctness 
of  which  was  solemnly  acknowledged  by  the  Maryland  legislature 
in  the  June  following. (jj) 

But,  even  as  early  as  February,  1777,  the  General  Assembly  of 
Maryland  had  declared,  that  the  quantity  of  paper  then  in  circula- 
tion greatly  exceeded  the  medium  of  commerce.  In  the  early  part 
of  the  year  1779,  wheat  sold  for  fifteen  to  twenty  pounds  per 
bushel ;  and  in  the  year  following  it  sold  as  high  as  thirty  pounds 
ten  shillings  per  bushel,  in  the  then  currency  of  the  State.  At  the 
close  of  the  year  1779,  a  committee  of  the  Delegates  stated,  "  that 
every  necessary  of  life  had  risen  to  forty  prices  at  least."  Paper 
money  continued  to  depreciate  so  rapidly,  that  in  INIarch  of  the 
year  1781,  it  passed  at  one  hundred  and  thirty  for  one,  and  soon 
after,  some  kinds  of  it,  ceased  to  circulate  at  all. 

At  the  close  of  the  year  1781,  the  pecuniary  resources  of  Mary- 
land appear  to  have  sunk  to  their  lowest  point  of  depression. 
Every  effort  had  been  made  to  prevent  a  total  bankruptcy,  but 
without  effect.  The  State  seems  to  have  been  forced  into  an  open 
and  solemn  acknowledgment  of  its  utter  inability  to  pay  its  debts 
for  some  time  to  come.  The  money  of  the  country,  under  the 
various  denominations  of  provincial  bills,  continental  bills,  conven- 
tion bills,  state  continental  money,  state  money,  black  money,  and 
red  money,  which  had,  from  time  to  time,  been  issued — and  had, 
so  far,  been  one  of  the  most  potent  means  of  sustaining  the  cause 
of  our  independence,  had  so  sunk  in  value,  as  it  increased  in 
quantity,  as  to  have  become  at  length  absolutely  worthless,  and  no 
longer  to  be  respected,  in  any  shape,  as  money.  It  was  estimated, 
that  the  whole  amount  of  coin,  then  in  this  State,  did  not  exceed 
one  hundred  thousand  pounds  ;  and  that  it  would  be  impossible  to 
collect  by  taxation  a  sufficiency  to  answer  the  demands  upon  the 
government.  A  committee  of  the  Delegates,  in  December  1784, 
stated,  that  tiie  great  fluctuation,  and  inequality  in  the  valuation, 
from  1778  to  1782,  inclusive,  of  the  property  in  the  State,  espe- 
cially of  land,  rendered  it  impossible  for  the  legislature  to  ascertain 
the  sum  that  any  tax  would  produce. 

(p)  The  Journals  of  Congress  of  the  ISth  of  March  1780;  and  the  act  of  June 
i7S0,  ch.  S. 

80 


634  THE  CHANCELLOR'S  CASE. 

Finding  it  impossible  to  bring  money  into  the  treasury,  of  suf- 
ficient value  to  meet  the  exigencies  of  the  times,  the  General 
Assembly,  at  their  first  session  in  the  year  1780,  authorized  and 
required  the  payment  of  taxes  in  wheat,  flour,  beef  upon  the  hoof, 
pork,  and  tobacco,  at  specified  rates.  The  resolute  freemen  of 
those  days  appear  to  have  cheerfully  paid  into  the  treasury  their  last 
dollar ;  and  then  to  have  contributed  with  alacrity,  under  all  the 
wasteful  disadvantages  of  such  a  mode  of  contribution,  a  share 
even  of  their  provisions  for  the  support  of  those  who  had  taken 
the  field  in  the  common  cause.  These  taxes  in  kind,  or  these 
"  specifics,''''  as  they  were  called  in  those  days,  were  collected  in 
many  different  warehouses,  and  places  of  deposite  throughout  the 
State  ;  and,  as  circumstances  required,  were  distributed  and  handed 
over  to  the  army,  or  the  public  creditors,  or  sold  to  raise  money  to 
meet  instant  and  pressing  demands.  And,  as  we  have  seen,  it 
was  made  optional  with  the  chancellor,  in  the  year  1782,  to  draw 
his  salary  in  bills  of  credit  of  the  last  emission,  or  in  wheat ,  one 
of  those  specifics.  Such  was  the  general  pecuniary  and  fiscal 
poverty,  and  embarrassment  of  the  first  years  of  the  republic,  that, 
at  the  April  session  of  1782,  an  act  was  passed  declaring,  that  no 
suit  should  be  brought  for  the  recovery  of  any  debt  unless  the 
debtor  had  neglected  to  pay  interest,  or  had  refused  to  deliver  any 
property  he  might  have  for  sale,  to  his  creditor  in  payment  at  a  fair 
valuation  ;  and  further,  that  the  time  from  thence  until  the  first  of 
January,  1784,  should  not  be  estimated  in  the  limitation  to  the 
prosecution  of  suits. 

About  the  close  of  the  year  1783,  there  being  every  reason  to 
hope  for  a  rapid  restoration  of  a  sound  circulating  medium,  with 
which  the  taxes  might  be  paid,  and  the  treasury  replenished,  the 
law  allowing  the  payment  of  taxes  in  Jdnd  was  abolished  ;  and 
the  specifics  on  hand  were  ordered  to  be  sold.  The  finances  of  the 
State  in  fact  recovered,  as  was  expected  ;  but  they  were  not  so  soon 
cleared  of  all  embarrassment,  and  re-established  upon  so  regular 
and  permanent  a  basis,  as  to  enable  the  General  Assembly,  imme- 
diately, to  determine  what  amount  of  salaries  could,  with  propriety, 
be  secured  to  the  judicial  officers  during  the  continuance  of  their 
commissions,  as  was  required  by  the  constitution. (</) 


(?)  The  authority  for  what  is  stated  in  this  and  the  three  proceeding  paragraphs, 
relative  to  the  paper  currency  and  the  pecuniary  condition  of  the  country  in  general, 
may  be  Ibund  in  the  history  of  the  Union  and  in  the  proceedings  of  Congress ; 


THE  CHANCELLOR-S  CASE.  G35 

On  the  23J  of  December,  1777,  the  Senate  sent  to  the  House 
of  Delegates  a  message  expressed  in  these  words :   "  Gentlemen, 

(2  Ram.  His.  U.  S.  cha.  18;  Jour.  Cong.  2oth  February,  and  26ih  August,  1730.) 
And  that  for  what  relates  to  Maryland  in  particular  has  been  derived  from  the  public 
acts  of  her  government ;  (February  1777,  ck.  3,  9  «5r  21 ;  October  1777,  ch.  IS  ;  Octo- 
ber 177S,  ch.  18;  March  1779,  ck.  16;  July  1779,  ch.  22;  November  1779,  ch.  42; 
March  1780,  ch.  25  and  31 ;  June  1780,  ch.  29  ;  November  1781,  di.  29  and  30;  and 
November  1782,  ch.  33  ;  and  the  Votes  and  Proceedings  of  the  House  of  Delegates  of 
the  12th  of  November  1777  ;  of  the  2lst  and  25th  of  March,  the  I2th  August,  and  the 
Uth  and  2lst  December  of  the  year  1779;  of  the  2ith  ^  25tk  April,  I6ih  May,  1st  4- 
7th  November,  and  16th  December  of  the  year  1780  ;  of  the  26th  of  January,  and  3d 
June  1781 ;  of  the  lAth  December  17S2 ;  and  of  the  loth  December  1784.)  The  sala- 
ries of  the  governor  and  council,  of  the  year  1780,  were  directed  to  be  paid  in  wheat 
at  £22  10s.  Od.,  per  bushel ;  and  the  salaries  of  all  other  civil  officers  at  a  rate  of 
exchange  varying  from  forty  for  one  to  sixty-five  for  one.—  ( Votes  S^  Pro.  H.  Del. 
29th  January,  I'Sl.) 

On  the  recommendation  of  Congress,  the  General  Assembly,  in  order  to  sustain 
the  credit  of  the  then  circulating  paper  currency  of  the  countrj',  proposed,  by  their 
act  of  June  l/SO,  ch.  18,  to  reduce  the  quantity  by  taking  up  the  State's  quota  of 
the  bills  then  in  circulation  b}'  a  new  emission  of  bills ;  for  the  redemption  of  which 
certain  funds  of  the  State  should  be  pledged ;  and,  in  case  those  new  bills  should 
depreciate,  it  was  provided,  that  such  depreciation  should  be  adjusted  by  the  chan- 
cellor and  judges,  who  should  publish  their  determination  in  the  Annapolis  and  Bal- 
timore newspapers  for  the  information  and  government  of  all  concemecL  After 
which,  at  the  next  session,  the  subject  having  been  brought  before  the  House  of 
Delegates,  they  appointed  a  committee  to  inquire  into,  and  report  the  state  and  cre- 
dit of  the  paper  money,  particularly  of  the  new  bills  emitted  in  pursuance  of  the  law 
made  at  the  then  la.«t  session  of  the  Assembly;  who  thereupon  reported,  on  the  7th 
of  November  1780,  that  they  had  inquired  into  the  credit  of  the  continental,  conven- 
tion, and  state  money ;  and  had  found,  that  the  continental  and  convention  money 
had  depreciated  to  eighty  for  one ;  and  that  the  circulation  of  the  state  money  issued 
under  tlie  late  act  of  Assembly  had  at  that  time  totally  stopped. — (  Votes  4"  Pro.  H. 
Del.  7th  November,  1780.) 

It  was  soon  after  enacted  and  declared,  that  the  commissioner  appointed  to  adjust 
the  pay  due  to  the  officers  and  sokliers  of  the  troops  of  this  State  should  be  governed 
by  the  following  scale  of  depreciation  ;  that  is  to  say,  in  1777  for  January  and  Feb- 
ruarj%  one  and  a  half;  March,  two;  April,  May,  and  June,  two  and  a  half ;  July,  August, 
September,  October  and  November  three  ;  and  December  four;  in  1778  for  January 
four,  February  and  March  five,  April  six,  J\Iay  five,  June  and  July  four,  August, 
September,  and  October  five,  November  and  December  si.v ;  in  1779  for  Januarj' 
€ight,  February  ten,  March  ten  and  a  half,  April  seventeen.  May  hventy-four,  June 
twent}',  J)i!y  nineteen,  August  twcnt\%  September  twent)-lbur,  October'  thirty, 
November  thirty-eight  and  a  half,  December  forty-one  and  a  half;  in  1780  for  January 
forty  and  a  half,  Februarj^  forly-sevcu  and  a  half,  March  and  April  sixty-one  and  a  half. 
May  fifty-nine,  June  and  July  sixty-one  and  a  half,  August  and  September  seventy, 
October  seventy-five,  November  eighty,  and  December  ninety ;  in  17S1  for  Januarj'one 
hundred  and  ten,  February  one  hundred  and  twenty,  March  one  hundred  and  thirty ; 
and  of  the  State  emissions  of  June/17S0,  compared  with  specie,  April  to  the  20th 
<lay  three  and  one  half,  to  the  30th  day  four.  May  to  the  10th  day  five,  to  the  20th 
«iay  six,  to  the  30th  day  six  and  one-half,  and  in  June  six  and  one  half  (October 
3789,  c't.  38,  5.  9  ;  May  1781,  ch.  17,  s.  2  ;  and  ch.  35,  s.  2.) 


g36  THE  CHANCELLOR'S  CASE. 

We  have  returned  with  our  negative  the  bill,  entitled  an  act  for 
the  payment  of  the  journal  of  accounts  ;  the  low  state  of  the 
treasury,  and  the  certainty  of  very  great  and  speedy  demands 
thereon,  for  eflfecting  the  several  matters  ordered  in  the  course 
of  this  session,  have  induced  us  to  defer  the  jmyment  of  the  jour- 
nal, to  a  time  when  tJie  money  can  he  taken  from  the  treasury  ivitk 
less  detriment  to  the  public.  We  are  willing  to  concur  with  a 
resolve  for  paying  the  clerks  and  other  officers  of  the  two  Houses, 
the  sums  respectively  due  to  them  on  the  journal."  This  proposi- 
tion was  at  once  assented  to,  and  a  resolution  to  that  effect  was 
brought  in  and  passed  both  Houses.  This  resolution  furnishes  a 
most  refreshing  instance  of  the  lofty,  disinterested  patriotism  of  the 
revolutionary  legislators  of  Maryland.  But  those  were  times  of 
peculiar  emergency  and  distress.  And  this  resolution  shows  how 
deeply  the  public  exigencies  were  felt,  when  legislators  themselves 
found  it  necessary  to  set  an  example  of  the  retrenchment  and 
economy  they  enjoined,  by  abandoning  their  own  compensation, 
while  every  other  officer  was  paid  to  the  full  extent  to  which  the 
acts  of  the  State  had  induced  him  to  expect  to  receive. 


In  order  to  do  justice  to  the  public  creditors  of  the  State  and  to  prevent  their  suf- 
fering' any  loss  by  depreciation  of  our  paper  money,  it  was  moreover  enacted  and 
declared,  that  in  the  payment  of  the  public  debts  evidenced  by  the  various  kinds  of 
certificates  for  jnoney  lent,  services  performed,  property  purchased,  or  taken,  &c., 
adopting  the  scale  prescribed  by  Congress  so  far  as  it  went,  all  such  certificates  of 
public  debt  should  be  paid  according  to  the  following  scale  of  depreciation ;  that  is  to 
say,  in  1778  from  the  first  of  March  one  and  three-quarters,  from  the  first  of  Septem- 
ber four ;  in  1779  from  the  first  of  March  ten,  from  the  first  of  September  eighteen  ; 
in  1780  fiom  the  18th  of  March  forty ;  and  after  that  day  as  in  tlie  abovementioned 
scale.  {Jour.  Cong.  iSih  June,  1730  ;  May  1781,  ch.  17,  s.  2.)  The  purchase  money 
of  confiscated  property  and  the  taxes  were,  nevertheless,  in  some  cases  and  in  some 
proportions  received  in  bills  of  credit  and  certificates  at  their  nominal  value.— ( Oc/o- 
ber  1780,  ch.  38,  s.  11 ;  May  1781,  ch.  20,  25,38  and  ."7,  4r.) 

These  le"-ally  established  scales  of  depreciation  it  must,  however,  be  recollected, 
relate  only  to  claims  against  the  State  ;  as  to  private  contracts  and  debts  due  from  one 
citizen  to  another,  the  proper  allowance  for  depeciation  seems  to  have  been  consid- 
ered as  a  fact  to  be  adjusted  in  each  case  by  the  court  of  justice  before  which  the 
case  was  brought,  {Chapline  v.  Scoll,  4  H.  8f  McH.  94.)  The  American  army  in 
these  years  was  not  only  deficient  in  clothing,  but  in  food.  The  seasons  both  in 
1779  and  1780,  were  unfavourable  to  the  crops.  The  labours  of  the  farmers  had  often 
been  interrupted  by  calls  for  militia  duty.  The  current  paper  money  was  so  depre- 
ciated as  to  be  deemed  no  equivalent  for  the  productions  of  the  soil.  {Ram.  L.  Wash- 
ins:ton,  ch.  6  <.^-  8.)  From  this  state  of  tilings  it  is  evident,  that  the  community  must 
have  sufiered  great  injustice  ;  and  that  the  public  finances  being  totally  deranged,  all 
the  operations  of  the  government  connected  with  this  subject  must  have  been  very 
much  impeded  and  perplexed. — {Message  from  the  Senate,  Votes  ^  Pro.  H.  Del. 
iOth  May  1780  ;  Hoye  v.  Penn,  ante  41,  note.) 


THE  CHANCELLOR'S  CASE.  637 

During  the  whole  of  this  distressing  period,  and  under  every 
aspect  and  change  of  circumstances,  the  legislators  of  the  Republic 
appear  to  have  been  actuated  by  a  strong  sense  of  justice,  and  a 
firm  determination  to  compensate  every  one  for  his  services  to  the 
full  extent  of  their  worth,  and  of  the  ability  of  the  State  to  pay. 
But  while  they  were  thus  making  every  possible  effort  to  render  to 
every  individual  his  due,  and  to  comply  with  the  provisions  of 
that  constitution  which  they  had  just  adopted,  and  had  declared 
should  be  sacred ;  they  felt  the  neces^sity  of  having  it  distinctly 
understood,  that  it  was  not  their  intention,  directly,  or  indirectly, 
to  plight  the  faith  of  the  State  for  the  payment  of  any  salary  which 
might  burthen  and  embarrass  its  finances  after  the  return  of  peace. 
Accordingly,  when  they  fixed  the  salaries  of  all  officers  upon  the 
high  nominal  scale  of  the  year  1780 ;  and  the  chancellor's  salary, 
as  we  have  seen,  was  fixed  at  twelve  thousand  Jive  hundred  pounds  ; 
the  General  Assembly  resolved  :  "  That  whatever  salaries  may  be 
given  to  the  officers  of  the  civil  list,  in  continental  currency,  shall 
be  subject  to  the  control  of  the  General  Assembly,  and  shall  stand  no 
longer  than  till  the  further  order  of  the  said  General -Assembly,  "(r) 

It  may  then  be  safely  assumed,  as  a  fact  incontrovertibly  estab- 
lished, by  the  acts  of  the  government,  and  the  history  of  the  times, 
that,  whatever  may  have  been  the  intentions  or  the  wishes  of  the 
General  Assembly,  during  the  first  nine  years  of  the  Republic,  it 
was  utterly  impracticable,  within  that  time,  to  comply  with  that 
provision  of  the  Declaration  of  Rights,  which  requires  the  legisla- 
ture to  secure  to  the  chancellor  a  salary  during  the  continuance  of 
his  commission.  But,  however  strongly  and  clearly  this  may  be 
deduced  from  the  facts  and  circumstances  of  those  times  ;  yet,  if  it 
rested  on  deduction  only,  and  there  were,  in  all  that  period,  no 
express  declarations  of  the  wishes,  understanding,  and  intention  of 
the  legislature  to  be  met  with,  there  might,  perhaps,  be  found, 
somewhere,  room  to  urge  a  cavil,  or  to  press  an  inference,  that  the 
Declaration  of  Rights  had  been  construed  to  allow  the  legislature  a 
discretionary  power  over  judicial  salaries ;  that  it  allowed  them  to 
temporize,  and  to  diminish  at  pleasure,  the  salaries  of  the  chan- 
cellor and  judges.  But  the  public  acts,  the  repeated  solemn  mes- 
sages, and  the  unequivocal  language  of  the  two  branches  of  the 
General  Assembly,  have  absolutely  and  positively  precluded  every 
doubt  and  cavil  upon  the  subject. 

(r)  Votes  &.  Pro.  H.  Del.  24tli  December,  1779. 


638  THE  CHANCELLOR'S  CASE. 

At  November  session,  1782,  the  Senate,  on  the  11th  of  Decem- 
ber, sent  to  the  House  of  Delegates  the  following  message  : — 
"  Gentlemen — The  bill  entitled,  an  act  to  settle  and  pay  the  civil 
list,  and  the  other  expenses  of  civil  government,  may  be  considered 
by  you  as  a  money  bill,  to  which  our  assent  or  dissent  only  can  be 
given  ;  and  as  you  might  have  deemed  it  improper  in  us  to  make 
any  alteration,  we  have  returned  it  with  a  negative  ;  we  might  other- 
wise Save  offered  such  amendments  as  would  have  met  with  your 
approbation ;  we  are  therefore  under  the  necessity  of  communicating 
to  you,  by  message,  the  reasons  of  our  dissent. 

"  You  will  readily  believe,  gentlemen,  that  we  do  not  mean  to 
leave  the  officers  of  government  unprovided  for ;  on  the  contrary, 
we  would  willingly  bestow  upon  them  liberal,  though  not  profuse 
salaries ;  but  when  the  weight  of  taxes,  already  so  severely  felt  by 
the  people,  is  likely  to  continue,  and  even  to  be  increased  by  a 
heavy  accumulating  interest  upon  a  large  debt,  for  which  no  funds 
are  yet  provided,  and  our  quota  of  the  continental  debt  and  interest 
remains  also  unprovided  for,  the  strictest  economy  in  all  our  affairs 
is  certainly  become  necessary ;  we  therefore  think  that  the  salaries 
of  the  gentlemen  of  the  council  might  be  lowered  to  three  hundred 
pounds  each,  the  auditor-general  three  hundred  and  fifty  pounds, 
and  his  deputy  one  hundred  and  fifty  pounds  ;  and  the  clerk  of  the 
council  two  hundred  pounds ;  the  treasurer's  office,  we'are  of  opi- 
nion, may  well  be  executed  for  six  hundred  pounds  to  the  princi- 
pal, out  of  which  he  might  employ  assistant  clerks. 

"  We  have  another  objection  to  the  bill,  more  weighty  than  that 
already  mentioned.  The  independency  of  the  judges  is  essential 
to  the  impartial  dispensation  of  justice ;  this  principle  cannot  be 
questioned,  and  is  recognized  by  the  Declaration  of  Rights ;  for, 
in  pursuance  of  the  principle  that  declaration  provides, '  that  salaries 
liberal,  hut  not,  prof  use,  ought  to  he  secured  to  the  chancellor  and 
judges  during  the  continuance  of  their  commissions.^  Their  sala- 
ries have  hitherto  heeii  settled  annually  hy  the  civil  list  bill ;  and 
consequently  cannot  be  said  to  be  secured  to  them  during  the  continu- 
ance of  their  commissions. — It  may  not  be  improper  to  settle 
annually  the  salaries  of  officers  annually  chosen  ;  nothing  at  least 
in  our  Constitution  expressly  militates  against  an  annual  regulation 
of  the  salaries  of  such  officers  ;  but  an  annual  regulation  of  the 
judges'  salaries,  is  repugnant,  as  w^e  conceive,  to  the  letter  and 
spirit  of  the  Constitution,  which  meant  that  they  should  really  be 
independent,  and  superior  to  every  undue  influence.     In  our  judg 


THE  CHANCELLOR'S  CASE.  639 

ment,  no  influence  over  them  would  be  more  dangerous  than  that  of 
the  legislature,  arising  from  the  hope  of  increasing,  or  the  apprehen- 
sion of  decreasing  salaries  ;  an  infuence  of  this  kind  would  have  a 
tendency  to  introduce  the  greatest  evil  in  government,  an  accumula- 
tion and  union  in  the  same  persons,  of  the  legislative  and  judicial 
powers,  so  wisely  and  expressly  proscribed  by  our  Constitution. 

"  The  perplexities  and  confusion  of  the  times  may  apologize  in 
some  degree,  for  past  inadvertency ;  for  loe  are  convinced,  a  delibe- 
rate violation  of  the  Declaration  of  Rights  was  never  intended  by 
the  legislature  in  any  point,  much  less  in  one  so  essential.  How- 
ever, as  the  enemy  hath  some  time  since  changed  an  offensive  into 
a  defensive  war  on  this  continent,  as  now  a  regular  and  effectual 
administration  of  law  and  justice  hath  taken  place  amongst  us,  it 
is  become  the  ditty  of  the  General  Assembly  to  establish  perma- 
nent salaries,  and  to  secure  a  punctual  and  full  payment  of  them 
to  the  judges. 

"  We  tlierefore  deem  it  both  expedient  and  necessary  that  a  bill, 
distinct  from  the  civil  list  bill,  should  originate  in  your  House  for 
that  purpose ;  such  a  bill  will  meet  with  our  ready  concurrence ; 
provided,  that  the  salaries  of  the  judges  be  liberal,  compared  with 
the  present  exigencies  of  the  State ;  for  what  might  now  be 
esteemed  liberal  under  those  exigencies,  may  not  appear  so  hereaf- 
ter, when,  from  a  happy  change  of  circumstances,  the  resources 
of  the  people  shall  be  greater  than  at  present.  In  this  point  of 
view,  we  consider  the  salaries  settled  on  the  judges  by  the  present 
bill,  as  sufficiently  liberal. 

"If  on  a  revision  of  the  subjects  of  this  message,  your  ideas 
should  coincide  with  ours,  as  to  the  quantum  of  the  salaries  pro- 
posed by  us  to  be  altered,  and  settled  annually  on  all  the  other 
civil  officers  of  government,  except  the  judges,  a  bill  originated  by 
you  for  that  purpose  will  have  our  ready  assent." 

To  this  message  from  the  Senate,  the  Delegates  on  the  12th  of 
January,  1783,  sent  the  following  answer :  "  May  it  please  your 
honours.  We  cannot  but  consider  the  bill  for  the  payment  of  the 
civil  list  as  a  money  bill,  and  therefore  subject  to  no  amendment 
by  your  honours.  By  a  rule  of  this  House,  before  any  person  is 
named  to  any  office  or  appointment,  to  which  any  salary  or  allow- 
ance is  annexed,  the  allowance  or  salary  is  first  ascertained.  The 
reason  of  this  provision  is  obvious,  to  prevent  any  opinion  that  the 
salary  is  given  to  the  person  and  not  to  the  office,  and  the  choice 
of  tlie  officer  removes  all  suspicion  of  partiality  or  prejudice.    We 


640  THE  CHANCELLOR'S  CASE. 

do  not  tliink  the  salaries  allowed  by  our  bill  profuse  or  extrava- 
gant, and  we  cannot  go  into  a  reconsideration  of  them  without 
departing  from  our  rule,  and  subjecting  ourselves  to  a  censure  we 
would  wish  to  avoid. 

"  We  agree  with  your  honours,  that  the  salaries  to  the  chancellor 
and  judges  ought  not  to  be  settled  by  an  annual  regulat/ion,  but 
ought  to  be  secured  to  them  during  the  continuance  of  their  com- 
missions ;  and,  as  soon  as  we  can  furnish  a  'permanent  and  perpe- 
tual fund  out  of  ivhich  their  salaries  can  be  paid,  toe  will  send  you 
a  distinct  bill  for  that  purpose,  and  we  hope  this  will  be  in  our  power 
before  the  expiration  of  the  year ;  we  have  returned  your  honours 
the  bill,  and  hope  it  will  meet  your  assent.''^ 

In  reply  to  which  the  Senate,  on  the  14th  of  the  same  month, 
sent  to  the  Delegates  the  following  message  :  "  Gentlemen,  We 
have  reconsidered  and  sent  you  the  civil  list  bill  with  our  assent ; 
you  have  laid  us  under  the  disagreeable  necessity  either  of  length- 
ening the  session  for  some  days,  at  a  time  wdien  every  gentleman 
expects  to  rise,  or  assenting  to  what  we  do  not  approve ;  we  must 
therefore  declare  to  you,  that  we  shall  hereafter  adhere  closely  to 
our  propositions,  and  have  only  at  this  time  assented  to  the  bill  to 
prevent  the  further  continuance  of  the  session,  or  the  confusion 
which  would  arise  from  leaving  the  civil  officers  without  any 
provision." 

From  these  messages  it  clearly  appears,  that  both  branches  of 
the  General  Assembly  agreed,  that  the  salaries  of  the  chancellor 
and  judges  ought  to  be  secured,  and  that  the  legislature  could  not 
constitutionally  diminish  or  withhold  them  at  pleasure.  But  the 
Delegates,  it  seems,  could  not  be  persuaded,  that  the  State  then 
had  it  in  its  power,  or  could  raise  the  funds  to  secure  those  salaries 
as  required  by  the  Constitution.  These  messages  need  no  comment. 
Yet  it  will  be  well  to  recollect,  that  some  of  those,  who  approved 
those  messages,  had  been  themselves  distinguished  members  of 
that  convention  which  framed  the  Constitution. 

At  the  November  session  of  1783,  this  subject  was  again  taken 
up,  and  a  committee  appointed  by  the  House  of  Delegates  ;  "  to 
consider  what  arrangements  might  be  necessary  and  proper  with 
regard  to  the  civil  establishment ;  who  reported,  "  that  the  chan- 
cellor, the  judges,  and  other  officers  on  the  civil  establishment  hold- 
ing commissions  during  good  behaviour,  ought  to  be  rendered  inde- 
pendent by  having  salaries  annexed  to  continue  during  their  co7itmu~ 
ance  in  office,''''  which  report  was  concurred  with.      In  consequence 


A 


THE  CHANCELLOR'S  CASE.  641 

of  which  the  same  committee  made  a  further  report  to  the  House, 
specifying  sundry  articles  as  being,  in  their  opinion,  "  proper 
objects  of  taxation  for  estabUshing  permanent  funds ^  for  the  pay- 
ment of  moneys  that  become  due  on  the  civil  list."  But  on  the 
second  reading  of  this  report,  the  laying  of  taxes  on  the  proceed- 
ings in  courts  of  law  and  equity,  which  was  considered  as  the 
most  productive  of  the  ways  and  means  for  raising  the  proposed 
fund,  was  rejected ;  and  the  aggregate  of  the  residue  not  being 
sufficient  for  the  payment  of  the  civil  list,  the  whole  project  failed. 
Hence,  owing  solely  to  the  declared  inability  to  provide  funds,  the 
judicial  salaries  were  again  settled  for  the  current  year  and  no 
longer. 

At  the  next  session  leave  was  given,  in  the  House  of  Delegates, 
to  bring  in  a  bill  to  establish  a  permanent  fund  for  the  payment  of 
salaries  to  the  chancellor  and  judges,  during  the  continuance  of 
their  commissions;  and  a  bill  was  accordingly  reported  to  the 
House ;  but  it  seems  to  have  been  virtually  superseded  or  nega- 
tived by  the  civil  list  bill,  in  which,  as  reported,  the  salaries  of  the 
chancellor  and  judges  were  to  have  been  secured  to  them,  "  dur- 
ing the  continuance  of  their  commissions ;"  but,  those  words  were 
stricken  out  on  the  second  reading,  by  a  majority  of  only  07ie  vote, 
and  the  bill  was  thus  passed,  bestowing  the  judicial  salaries  "for 
the  current  year  only."  At  this  session  the  propriety  of  giving  to 
judicial  salaries  the  requisite  constitutional  security  had  been  intro- 
duced and  pressed  upon  the  attention  of  the  General  Assembly  by 
the  Intendant  of  the  Revenue  in  the  conclusion  of  his  report,  in 
which  he  says,  "  Permit  an  old  servant  to  recommend  to  your  most 
serious  consideration,  the  increasing  of  the  chancellor's  and  the 
judges  of  the  General  Court's  salaries.  Their  present  allowance 
will  not  support  them,  whilst  provisions  and  other  necessaries  con- 
tinue at  their  present  prices.  Your  lives,  liberties  and  properties, 
depend  much  more  upon  the  abilities  and  integrity  of  gentlemen 
who  fill  these  judicatories  than  perhaps  at  first  view  may  be  ima- 
gined. These  ojjicers  ought  to  be  put  above  want,  and  whatever  is  given 
ought  to  be  absolute,  and  without  control,  and  not  be  obliged  to  look 
up  annually  to  the  legislative  body  for  their  next  yearns  support. 
The  increase  I  would  recommend  would  be  jEISO  to  each,  amount- 
ing in  the  whole  to  only  j£600 ;  a  small  tax  upon  law  proceedings 
would  bring  in  much  more  than  this  sum  to  the  treasury." 

At  the  session  of  the  General  Assembly  held  in  November,  1785, 
there  were  convened,  as  our  statute  book  will  show,  the  most 

81 


642  THE  CHANCELLOR'S  CASE. 

worthy  and  enliglitened  body  of  legislators  Maryland  ever  saw. 
On  the  24th  of  November  of  that  session,  the  Senate  sent  the  fol- 
lowing message  to  the  House  of  Delegates  : 

"  Gentlemen,  We  think  it  a  duty  incumbent  on  us  to  call  your 
attention  to  the  state  of  our  judiciary  department.  The  thirtieth 
article  of  our  bill  of  rights,  for  very  obvious  and  important  rea- 
sons, enjoins  that  the  chancellor  and  judges  should  be  independent, 
not  only  by  holding  their  commissions  during  good  behaviour,  hut 
also  by  having  proper  salaries  secured  to  them  during  the  continu- 
ance of  their  commissions.  It  is  the  duty  of  the  legislature  both  to 
fix  the  salary  of  the  chancellor  and  judges,  and  to  provide  funds 
by  a  permanent  law  for  the  regular  payment  of  such  salaries.  This 
duty  has  not  been  complied  with  ;  and  instead  of  being  in  that  state 
of  independency  required  by  the  hill  of  rights,  and  strongly  dictated 
by  the  first  principles  of  free  governments,  the  chancellor  and  judges 
Iiave  hitherto  remained  dependent  for  their  salaries  upon  the  annual 
votes  of  the  legislature.  This  House  have  been  of  opinion  for  a 
considerable  time  past,  that  there  was  no  circumstance  which  would 
justify  the  legislature  in  delaying  to  make  the  provision  required 
by  the  constitution ;  and  our  opinion  hath  been  ineffectually  com- 
municated to  a  former  House  of  Delegates ;  but  we  trust,  gentle- 
men, you  will  concur  with  us  in  sentiment,  that  this  very  important 
subject  ought  to  be  properly  attended  to  early  in  this  session ;  and 
that  you  will  in  due  time  send  us  a  bill  for  fixing  the  salaries  of 
the  chancellor  and  judges,  during  the  continuance  of  their  com- 
missions, and  for  the  payment  of  those  salaries  with  certainty  and 
regularity.  The  experience  of  past  sessions  induces  us  to  appre- 
hend we  may  find  ourselves  under  the  necessity  of  determining  too 
hastily,  matters,  by  which  the  welfare  of  this  State  in  particular, 
and  of  the  United  States  in  general,  may  be  essentially  affected, 
and  which  consequently  demand  the  maturest  consideration. 

"  Towards  the  close  of  each  session,  when  from  its  length  and 
the  approaching  severity  of  the  season  the  House  of  Delegates 
have  been  usually  anxious  to  rise,  the  most  important  part  of  the 
public  business  hath  been  transmitted  to  the  Senate.  As  the 
Constitution  does  not  allow  this  House  to  propose  amendments  to 
money  bills,  the  evil  consequence  must  readily  occur,  if  we  should 
think  it  necessary  to  dissent  to  them  at  a  time  when  the  House  of 
Delegates  will  not  agree  to  continue  sitting  to  reassume  the  discus- 
sion of  the  subject  matter  of  such  bills,  or  even  to  enter  into  a 
consideration  of  such  amendments  as  the  Senate  may  propose  to 


THE  CHANCELLOR-S  CA^.  q^ 

Others.  We  therefore  request  that  such  important  bilhs  as  are 
intended  to  be  offered  for  our  consideration  by  your  House,  may 
be  sent  to  us  so  early^in  the  session,  that  a  fair  opj^ortunity  may 
be  given  to  us  of  considering  them  with  that  deliberation  which 
every  interesting  act  of  legislation  requires." 

This  message  not  having  produced  all  the  good  effects  desired, 
the  Senate,  on  the  19th  of  January  following,  wrote  again  to  the 
Delegates  as  follows :  "  Gentlemen,  Upon  reading  your  bills  to 
establish  permanent  salaries  for  the  governor,  chancellor,  and 
judges,  we  are  of  opinion  the  provision  proposed  to  be  made  for 
them  is  not  a  sufficient  compensation  for  their  services,  nor 
will  it  enable  them  to  support  with  dignity  the  rank  to  which 
their  superior  trusts  entitle  them,  Tlie  greatest  security  which  a 
people  can  enjoy  under  any  government,  results  from  a  strict  and 
impartial  administration  of  justice.  The  independence  of  the 
magistrate  invested  with  this  important  trust,  has  been  the  first 
care  of  the  legislator,  who  wished  the  government  to  be  perma- 
nent and  the  people  happy.  By  a  liberal  provision  being  made 
to  the  chancellor  and  the  judges,  they  can  dedicate  their  whole 
time  and  abilities  to  the  service  of  the  public.  Gentlemen  of 
merit  and  knowledge  will  be  thereby  induced  to  engage  in  this 
most  important  trust,  and  their  personal  character  and  abilities 
will  give  W'eight  to  their  decisions,  and  security  to  the  govern- 
ment. We  are  very  sensible,  that  the  state  of  our  finances 
requires  economy,  but  flatter  ourselves  you  will  upon  reconsidera- 
tion, think  with  us,  that  the  salaries  of  the  officers  referred  to 
in  this  message  may  be  enlarged,  without  incurring  a  censure 
for  profusion.  As  there  are  no  funds  particularly  jnovided  for 
the  payment  of  those  salaries,  it  would  he  very  agreeable  to  us  to 
mortgage  all  the  unappropriated  revenues  of  the  Slate  for  the  pay- 
ment of  them.  We  have  sent  you  the  bills  for  reconsideration, 
in  hopes,  that  you  will  consent  to  an  enlargement.  The  folloAving 
salaries  would  meet  our  perfect  approbation  :  To  the  Governor 
jei200.  To  the  Chancellor  jEIOOO.  To  the  Judges  of  the  Gene- 
ral Court,  each  ^£850.  Judges  of  the  Court  of  Appeals,  each 
£bOO.     Judge  of  the  Court  of  Admiralty  ^500. 

"  W^e  submit  to  your  consideration  the  propriety  of  passing  a 
law  to  lessen  the  number  of  the  Court  of  Appeals  to  three,  when 
circumstances  admit.  If  ujwn  reconsidering  the  subject,  you  do 
not  think  it  proper  to  make  any  further  allowance,  or  to  make  the 
funds  more  certaiijy  productive  of  a  sufficient  sum  to  pay  sala,ries, 


644  THE  CHANCELLOR'S  CASE.  , 

we  wish  you  to  return  us  the  bills,  that  we  may  determine  on 
them." 

To  this  message  from  the  Senate,  the  Delegates  on  the  23d  of 
the  same  month  made  the  following  reply:  ^^  May  it  please  your 
honours — This  House  have  considered  your  message  of  the  19th 
instant,  by  James  Lloyd,  Esquire.  We  are  very  desirous  of  mak- 
ing a  liberal  provision  for  the  governor,  the  chancellor,  and  the 
jud"-es ;  and  wish  the  circumstances  of  our  people  would  justify 
this  House  in  acceding  to  the  salaries  proposed  by  the  Senate.  If 
time  will  jyermit^  we  shall  attempt  to  provide  particular  funds,  to 
secure  the  payment  of  the  salaries  established  hy  our  hill.  It  will 
always  be  in  the  power,  as  it  will  certainly  be  in  the  inclination  of 
the  legislature,  to  make  such  alterations  in  the  present  salaries,  as 
the  ability  of  government  will  permit. 

"  As  the  chancellor  must  necessarily  have  great  trouble,  from  the 
number  of  disputes  relative  to  the  grants  of  lands,  we  are  willing  to 
make  him  compensation ;  and  to  add  a  clause  to  the  bill  for  the  civil 
list,  allowing  him  the  sum  of for  the  next  year. 

"  This  House  will  consent  to  limit  the  number  of  judges  in  the 
Court  of  Appeals  ;  and  that  when  any  vacancy  may  happen,  the 
number  shall  not  exceed  three,  until  the  abilities  of  the  State  will 
justify  an  increase  of  the  establishmentr" 

Soon  after  the  sending  of  the  last  of  these  messages,  on4he  7th 
of  February,  1786,  the  act  of  1785,  ch.  27,  received  the  assent  of 
both  Houses,  and  became  a  law.  This  is  the  first  legislative  act 
which  secured  to  the  chancellor  and  judges  their  salaries  during 
the  continuance  of  their  commissions. 

This  review,  which  we  have  taken  of  the  first  nine  years  of  the 
Republic,  shows,  that  during  the  whole  of  that  time,  that  provision 
of  the  thirtieth  article  of  the  Declaration  of  Rights,  which  requires 
the  legislature  to  secure  to  the  chancellor  and  judges  their  salaries 
during  the  continuance  of  tlieir  commissions,  was  waived.  But  the 
reason  why  it  was  so  left  dormant  and  inoperative,  is  most  satis- 
factorily shown.  The  causes  were  imperative  and  uncontrollable ; 
they  amounted  almost  to  a  physical  impossibility  to  give  effect  to 
that  provision  of  the  Declaration  of  Rights.  Such  causes  have,  at 
various  times,  been  held  to  be  an  allowable  excuse,  for  the  widest 
departures  from  some  of  the  most  important  provisions  of  the  Con- 
stitution. Thus,  in  the  year  1780,  when  this  State  was  immi- 
nently threatened  with  being  made  the  immediate  seat  of  war,  the 
governor  was  invested  with  the  dangerous  power  of  seizing  any 


THE  CHANCELLOR'S  CASE.  645 

persons  he  suspected  of  treachery  to  the  country,  and  of  having 
them  tried  and  executed  according  to  martial  law.  Nothing  could 
justify,  but  the  times  seemed  to  excuse  the  measure. (s) 

No  one  can  look  over,  and  meditate  upon  the  condition  and  cir- 
cumstances of  Maryland  during  the  first  nine  years  of  the  Republic, 
and  say  that  it  "vvould  have  been  entirely  safe,  and  proper,  and  just, 
either  to  the  State,  or  the  officer,  to  have,  at  once  unchangeably 
secured  to  the  chancellor  and  the  judges  their  salaries,  during  the 
continuance  of  their  commissions.  Nor  can  any  one,  afler  atten- 
tively perusing  the  before  recited  messages  and  acts  of  the  General 
Assembly,  assert,  that  the  legislature,  previous  to  the  year  1785, 
ever  intended  to  claim,  in  any  way,  any  discretionary  power  what- 
ever, to  unsettle,  to  diminish,  or  to  withhold,  the  whole  or  any  part 
of  the  salarj'  of  the  chancellor  or  of  a  judge. 

On  the  contrary,  these  two  positions  are  most  clearly  and  incon- 
trovertibly  established  :  Jirsty  that  the  salaries  of  the  chancellor 
and  judges  were  not  secured  during  that  period,  because,  and  only 
because,  of  the  then  circumstances  of  the  State.  And  secondly,  that 
the  legislature  always  expressly  admitted  the  full  force  of  the  con- 
stitutional obligation ;  but,  alleged  the  circumstances  of  the  State  as 
the  only  reason  for  their  not  securing  those  salaries  as  they  were 
required.  Therefore,  any  legislators  who  would  now  assume  all, 
or  any  of  that  discretionary  power,  then  exercised  over  the  salaries 
of  the  chancellor  and  the  judges,  must  produce  reasons  as  cogent, 
an  excuse  as  self  evident,  and  show  the  present  operation  of  causes 
as  powerfully  overruling  and  imperative  as  those  which  then 
existed. 

The  act  of  1785,  ch.  27,  carefully  recites  the  provision  of  the 
Declaration  of  Rights  respecting  judicial  salaries  ;  distinctly  recog- 
nizes the  constitutional  obligation  the  legislature  were  under  to 
secure  to  the  chancellor  and  the  judges  salaries,  during  the  con- 
tinuance of  their  commissions  ;  and  then  gives  to  the  chancellor  a 


(5)  June  17S1,  ch.  12,  and  November  1781,  ch.  5,  notes  Hanson's  Laws  of  Maryland. 
It  seems  that  Marjland  was  not  singular  in  thus  leaving  her  judges  witliout  any  pro- 
perl}-  settled  salaries  during  this  period  of  public  distress.  In  a  letter  of  the  23d  of 
February  17S2  to  G.  Clinton,  governor  of  New  York,  from  John  Jay,  he  says : 
"  Mr.  Benson  writes  me  that  your  judges  are  industriously  serving  their  country, 
but  that  tlieir  country'  had  not,  as  yet,  made  an  adequate  pro\-ision  for  them. 
This  is  bad  policy,  and  povertj'  cannot  excuse  it.  The  bench  is  at  present  well 
filled ;  but  it  should  be  remembered,  that  although  we  are  told  that  justice  should 
be  blind,  yet  there  are  no  proverbs  which  declare  that  she  ought  also  to  be  hungry." 
(2  Jay's  Life,  93.) 


646  THE  CHANCELLOR'S  CASE. 

salary  of  six  hundred  and  fifty  pounds  per  annum  during  the  con- 
tinuance of  his  commission.  The  appropriation,  or  provision  made 
for  the  payment  of  this  salary  is  to  be  found  in  the  third  section  of 
this  act,  and  is  expressed  in  these  %vords ;  "  the  said  salaries  shall 
be  paid  quarterly,  out  of  the  supplies  raised  every  year,  until  the 
General  Assembly  shall  make  other  provision  for  payment  ;  and  the 
said  salaries,  for  the  ensuing  year,  shall  be  paid  out  of  the  arrearages 
of  taxes  due  for  the  year  seventeen  hundred  and  eighty-five."  By 
the  act  of  1792,  ch.  76,  it  was  declared,  "  that  the  chancellor  shall 
be  entitled  to  receive,  ybr  all  duties  and  services  whatever,  prescribed, 
or  to  be  prescribed  by  law,  an  annual  salary  of  nine  hundred  and 
fifty  pounds  current  money,  during  the  continuance  of  his  commis- 
sion, to  be  paid  quarterly.  By  the  four  last  sections  of  this  act, 
an  appropriation  or  provision  was  made  for  the  payment  of  that 
salary  out  of  a  particular  fund,  to  be  raised,  by  taxes  on  proceed- 
ings in  chancery  and  the  land  office,  and  money  arising  from  the 
sale  of  vacant  land ;  which  was  to  be  specially  set  apart  for  that 
purpose.  This  appropriation,  or  special  fund  was  temporary,  and 
limited  to  five  years,  was  continued,  by  the  act  of  1797,  ch.  51, 
for  seven  years  longer ;  and  was  then  virtually  applied  to  general 
purposes,  by  operation  of  the  act  of  1798,  ch.  86,  and  expressly 
so  applied  by  the  acts  of  1804,  ch.  64  and  108.  By  a  resolution 
passed  at  November  session,  1796,  an  addition  of  two  hundred 
dollars  was  made  to  the  chancellor's  salary  for  the  ensuing  year.(^) 


(t)  On  running  the  eye  over  the  acts  and  titles  of  acts  passed  by  the  General 
Assembly  under  the  provincial  government  of  Maryland,  in  Bacon's  revision,  it 
cannot  but  strike  the  attention  of  every  one  how  large  a  proportion  of  them,  even 
those  of  the  most  important  character,  were  limited  in  their  operation  to  a  specified 
period  of  time,  and  that  too,  of  a  very  short  duration.  This  temporary  mode  of 
legislation  must  have  been  attended  with  very  considerable  inconvenience.  But  it 
appears  to  have  been  resorted  to  by  the  colonists  as  the  only  means  of  defending  their 
rights  and  interests  against  the  undue  exercise  of  the  royal  and  proprietary  preroga- 
tives. It  will  be  recollected,  that  any  act,  after  it  had  been  passed  by  the  General 
Assembly,  however  beneficial  or  necessary  to  the  people,  might  be  annulled  by  being 
dissented  from  by  the  lord  proprietarj'  or  by  the  king ;  and  therefore,  to  keep  the 
proprietary  or  the  king  within  reach  of  the  people  and  dependent  upon  tliem  by 
rendering  it  necessaiy  to  convene  tlieir  representatives  at  short  intervals  to  reenact 
or  continue  laws  necessary  for  the  support  of  the  government ;  (7  3{ass.  His.  Soci.  129 ;) 
and  to  extract  from  the  proprietarj'  or  king  the  assent  to  new  laws  which  might  be  called 
for  by  the  people,  it  was  deemed  expedient,  by  the  General  Assembly,  to  limit  their 
legislative  enactments  to  a  very  short  duration.  Indeed  it  is  said,  that  some  of  the 
colonial  General  Assemblies,  in  order  to  peserve  their  independence  of  the  king,  had 
done  almost  every  act  of  legislation,  by  votes  ororders,  even  to  the  repealing  the  effects 
of  acts,  suspending  establishments  of  pay,  paying  services,  doing  chancery  and  other 
juditatory  business,  &.c.  having  their  effect  without  being  reduced  to  the  form  ol 


THE  CHANCELLOR'S  CASE.  647 

The  appropriation  for  the  payment  of  this  sum  was  general  without 
specification.  By  the  act  of  1797,  ch.  71,  it  was  declared,  that 
the  chancellor  "  as  chancellor  docid  judge  of  the  land  office  shall  be 
entitled  to  receive  ybur  hundred  and  ffty- six  dollars  and  fifty-seven 
cents,  in  addition  to  the  permanent  salary  fixed  by  law."  The 
appropriation  and  provision  for  the  payment  of  this  addition  was 
made  by  the  second  section  of  this  act  in  these  words  ;  "  the  said 
sum  shall  be  paid  at  the  same  time,  and  in  the  same  manner  during 
the  continuance  of  this  act,  as  his  permanent  salary  is  by  law 
directed  to  be  paid."  By  the  act  of  1798,^.  86,  it  is  declared, 
"  that  the  chancellor  shall  be  entitled  to  receive,  ybr  all  duties  and 
services  whatever,  prescribed  or  to  he  prescribed  by  law,  an  annual 
salary  of  twelve  hundred  and  seventy-five  pounds  current  money  and 
no  more."  The  appropriation,  and  provision  for  the  payment  of 
this  salary  is  general ;  it  is  "  to  be  paid  quarterly  by  the  treasurer 
of  the  Western  Shore."  There  is  no  designation  of  any  fund  as  in 
the  act  of  1785,  or  in  that  of  1792. 

It  appears  then,  that  the  salary  of  the  chancellor  has  grown  up 
and  increased  with  the  wealth,  business,  and  population  of  the 
State  from  1785  to  1798.  It  has  never,  during  the  last  forty  years, 
been  in  any  manner  diminished,  nor  at  any  time,  prior  to  the  21st 
of  February  in  the  year  1825,  been  attempted  to  be  diminished. 
That  the  amount,  thus,  from  time  to  time,  given  to  the  chancellor 
was  secured  to  him  during  the  continuance  of  his  commission, 
has  never,  from  any  thing  that  appears  in  the  votes  and  proceed- 
ings of  the  General  Assembly,  or  in  our  statute  book,  been  at  any 
time  called  in  question  previous  to  the  last  session  of  the  legisla- 
ture. If  the  General  Assembly  have  any  discretionary  power  to 
withhold,  or  to  diminish  the  chancellor's  salary,  it  cannot,  as  we 
have  seen,  arise  from  any  thing  contained  in  the  Declaration  of 
Rights ;  nor  can  it  be  sustained  by  any  precedents  of  cases  in 
which  any  previous  legislature  have  distinctly  asserted  and  main- 


acts,  or  being  submitted  for  the  allowance  or  disallowance  of  the  crown.  (Pown. 
Mm.  Col.  75.)  This  practice  of  the  colonial  legislatures,  of  passing  temporary  laws 
and  special  orders  was  strongly  condemned  in  England  as  a  pernicious  evasion  of 
the  king's  prerogative  of  approving  or  disapproving  of  all  their  legislative  enact- 
ments ;  and  the  governors  were  accordingly  positively  instructed  to  give  their  assent 
to  no  such  acts  or  orders.  {2  Chal.  Opin.  Em.  Law,  bS  ;  Fown.  jidm.  Colo.  75; 
1  Chal.  Opin.  Em.  Law,  350.)  But,  it  seems,  this  inconvenient  practice  had  become 
so  much  a  habit  in  Maryland,  that  it  has  been  too  long  cojjtinued  ;  since  the  revolu- 
tion, by  which  the  causes  that  had  suggested  and  rendered  it  expedient,  have  been 
completely  removed.  i 


648  THE  CHANCELLOR'S  CASE. 

tained  any  such  constitutional  power.  If  then,  any  colourable  pre- 
text  for  the  exercise  of  such  a  discretionary  power  to  withhold  or  to 
diminish  the  chancellor's  salary  is  any  where  to  be  discovered,  it 
must,  it  is  presumed,  be  sought  for  among  the  implications,  infer- 
ences, and  deductions  to  be  gathered  from  some  one,  or  all  of  the 
acts  passed  since  the  act  of  1785,  which,  in  any  way,  give  to  the 
chancellor  a  compensation  for  his  services.  Let  us  then  carefully 
consider  these  acts. 

The  House  of  Delegates,  of  the  last  session,  seem  to  have 
deemed  it  necessary,  not  only  to  except,  from  the  operation  of 
their  general  continuing  act,  the  law  of  1798,  ch.  86 ;  but  also, 
that  of  1797,  ch.  71.  The  last  mentioned  act  was  expressly 
limited,  in  its  duration,  to  the  20th  of  October,  1800,  and  until  the 
end  of  the  next  session  of  Assembly  that  should  happen  thereafter ; 
when,  even  if  it  had  not  been  virtually  repealed  by  the  act  of 
1798,  ch.  86,  it  must  have  expired  of  itself,  so  far  as  such  an  act 
could  constitutionally  expire  ;  since  there  is  no  law  to  be  found,  by 
which  it  has  ever  been  continued,  either  generally  or  specially. 
Therefore,  this  act  might  have  been,  very  safely  and  prudently, 
passed  over  by  the  Delegates,  without  at  all  enfeebling  the  force 
of  any  argument  they  could  possibly  have  urged  in  support  of  the 
right  they  had  assumed  to  reduce  the  chancellor's  salary.  But, 
since  the  act  of  1797,  ch.  71,  has  been  thus  invoked  into  this  con- 
troversy, an  explanation  may  be  deemed  necessary. 

The  Court  of  Chancery  of  this  State  is,  in  all  respects,  substan- 
tially analogous  to  that  of  England ;  but,  in  Maryland,  the  chan- 
cellor has  long  been  invested  with  certain  powers,  and  a  jurisdic- 
tion, which  are  exercised  in  a  name  and  character,  altogether 
peculiar  to  this  State  ;  and  that  is,  "  as  judge  of  the  land  office.^'' 
Before  the  revolution  the  lord  proprietary  was  the  owner,  in  his 
individual  and  private  capacity,  of  all  the  land  and  territory  in 
Maryland  ;  which  he  sold  or  gave  away  at  pleasure.  Not  long 
after  the  settlement  of  the  province  w^as  commenced,  a  land  office 
was  established,  through  which  any  person  might  obtain  a  title  for 
any  vacant  land,  on  complying  with  the  established  conditions  and 
regulations.  As  the  settlements  extended,  and  the  sales  of  land 
were  multiplied,  numerous  controversies  arose  as  to  the  formality 
and  correctness  of  the  incipient  and  original  titles,  thus  obtained 
from  the  proprietary.  For  the  purpose  of  determining  these  con- 
troversies, a  judge  of  the  land  office  was  appointed,  about  the  year 
1680  ;  and  the  chancellor  of  the  province  was  charged  with  the 


I 


THE  CH.^JfCELLOR'S  CASE.  649 

determination  of  those  matters,  either  as  judge,  or  as  assistant  of 
the  judge  of  the  land  office.(M) 

On  the  revolution,  although  all  the  powers,  rights,  and  property 
of  the  proprietary  devolved  upon  the  State,  or  were  abolished  and 
confiscated,  there  was  no  express  provision  in  the  constitution  for 
Si  judge  of  the  land  office.  But,  as  it  would  seem,  it  was  clearly 
understood,  that  the  chancellor  of  the  State,  of  course,  succeeded 
to,  and  might  rightfully  exercise  all  the  power  and  authority  of 
judge  of  the  land  office,  which  had,  at  any  time,  belonged  to  the 
chancellor  of  the  proprietary  government.  And  this  additional 
capacity  and  character,  of  the  chancellor  of  this  State,  was  dis- 
tinctly recognised  and  confirmed  by  the  act  of  November,  1781, 
ch.  20,  s.  6.  The  chancellor  of  Maryland  is  then,  by  virtue  of  his 
o^ce,  judge  of  the  land  office ;  and,  as  such,  he  is  invested  with 
jurisdiction  to  hear  and  determine  all  cases,  as  to  the  equitable 
right,  or  incipient  title  acquired  under  warrants  and  certificates  of 
survey,  which  may  become  the  subject  of  contest  in  the  land  office. 
This  jurisdiction  of  the  chancellor,  at  first,  extended  over  the 
whole  State  ;  but,  by  the  act  of  1795,  ch.  61,  s.  5,  a  judge  of  the 
land  office,  for  the  Eastern  Shore,  was  directed  to  be  appointed ; 
who  was  clothed  with  all  the  original  jurisdiction  exercised  by  the 
chancellor  on  that  shore  ;  reserving,  however,  an  appeal  to  the 
chancellor.  And,  by  the  act  of  1795,  ch.  70,  it  was  declared, 
"  that  the  judge  of  the  land  office  for  the  Eastern  Shore  should 
receive  a  salary  of  one  hundred  and  fifty  pounds  per  annum,  during 
his  continuance  in  office  ;^''  which  salary  has  been  regularly  paid  to 
that  officer  ever  since. 

Thus,  it  is  cbvious,  that  the  two  offices  and  functions  of  chan- 
cellor, and  judge  of  the  land  office,  have  long  been  united  in,  and 
exercised  by  the  same  individual.  The  provision  of  the  Declara- 
tion of  Rights,  relative  to  the  independency  and  uprightness  of 
judicial  officers,  speaks  only  of  the  chancellor ;  of  his  holding  a 
commission  during  good  behaviour ;  and  of  his  salary  being 
secured  to  him  during  the  continuance  of  his  commission.  But, 
his  other  character,  oi  judge  of  the  land  office,  is  no  where  noticed 
in  the  Declaration  of  Rights  or  Constitution,  in  any  manner  what- 
ever. The  office  of  chancellor,  having  been  created  by  the  consti- 
tution, the  executive  is  bound  to  appoint  a  chancellor  ;  and  the 
legislature  is,  in  like  manner,  bound  to  secure  to  him  a  salary 

(u)  Cunningham  v.  Browning,  ante  299. 

82 


650  THE  CHANCELLORS  CASE. 

during  the  continuance  of  his  commission.  But,  the  constitution? 
being  wholly  silent  as  to  a  judge  of  the  land  office,  the  executive 
and  legislature  are  under  no  such  constitutional  obligation  ta 
appoint  and  provide  for  such  an  officer.  This  was  always  the  clear 
and  distinct  understanding  of  the  General  Assembly. 

At  the  session  of  1785,  when  the  legislature  were  about  to  pass 
that  act,  which  first  secured  to  the  chancellor  his  salary  during  the 
continuance  of  his  commission,  it  will  be  seen,  by  the  before 
recited  message  from  the  Delegates,  that  this  distinction  between 
the  chancellor's  two  characters  was  adverted  to  as  a  matter  then 
familiarly  and  well  understood.  For,  it  is  evident,  that  their  dis- 
inclination to  give  a  higher  salary,  at  that  time,  arose  from  the 
conviction,  that  whatever  salary  they  should  give  him  as  chan- 
cellor, must  be  given  during  the  continuance  of  his  commission^ 
during  which  period  it  could  not  be  diminished  or  revoked ;  and, 
being  unwilling  so  to  pledge  the  State,  at  that  time,  for  the  pay- 
ment of  an  amount  which  they  admitted  was  then  reasonable, 
they  gave  him  an  addition  to  his  salary  in  another  character ;  that 
is,  as  judge  of  the  land  office  ;  in  which  form,  that  addition  was 
always  subject  to  be  renewed,  reduced,  or  withdrawn  at  pleasure. 
The  chancellor  was  thus,  at  the  session  of  1785,  for  the  first  time, 
separately  compensated  in  each  of  his  two  distinct  characters.  By 
the  27th  chapter  of  that  session,  a  salary  was  secured  to  him  dur- 
ing the  continuance  of  his  commission,  as  chancellor  ;  and  by  the 
74th  chapter  of  the  same  session,  he  was  additionally  compensated 
for  his  services,  as  judge  of  the  land  office,  for  the  current  year.  In 
the  one  character  his  salary,  being  secured  by  the  Declaration  of 
Rights,  was  intangible,  in  the  other,  his  compensation  was  renew- 
able from  year  to  year,  and  to  any  amount,  at  the  pleasure  of  the 
legislature. 

By  the  act  of  1785,  ch.  74,  the  sum  of  two  hundred  pounds  was 
given  to  the  chancellor,  as  judge  of  the  land  office,  for  the  then 
ensuing  year.  The  sum  of  one  hundred  pounds  was  given  to 
him,  in  the  same  character,  by  the  civil  list  bill  of  each  successive 
year  until  1792  ;  when  his  salary,  as  chancellor,  being  increased, 
his  compensation,  as  judge  of  the  land  office,  was  discontinued  until 
the  year  1797 ;  when  an  addition  was  again  made  to  his  salary  of 
four  hundred  and  sixty-six  dollars  and  fifty-seven  cents,  in  the  two- 
fold character  of  chancellor  and  judge  of  the  land  office.  And  at 
the  next  session  of  the  legislature,  the  character  oi  judge  of  the 
land  office  was  again  dropped,  and  the  whole,  with  a  still  further 


THE  CHANCELLOR'S  CASE.  651 

"addition,  was  put  together  and  given  in  the  constitutional  charac- 
ter of  a  salar}'  to  the  chancellor ;  similar  to  that  described  by  the 
act  of  1792,  to  which  this  act,  for  greater  certainty,  was  by  its  title 
declared  to  be  "  a  supplement.'''' 

In  every  instance,  from  the  year  1785  to  the  present  time,  where 
it  was  the  express  intention  of  the  legislature  to  give  an  additional 
compensation  to  the  chancellor,  during  their  pleasure,  it  was  given 
to  him  as  judge  of'  the  land  ojfice.  And  in  all  instances,  where  it 
was  intended  to  compensate  him  according  to  the  terms  of  the 
Declaration  of  Rights,  the  salary  was  given  to  him  as  chancellor. 
This  is  manifest  from  all  the  acts,  and  the  whole  course  of  legisla- 
tive proceedings  from  that  time  down  to  the  21st  of  February  1825. 
For,  it  certainly  could  not  have  been  the  intention  of  the  Assembly 
of  1798  to  loosen  and  set  afloat  the  whole  of  the  chancellor's 
salary  ;  to  be  paid  or  not  according  to  the  mere  whim  or  caprice  of 
every  succeeding  body  of  legislators,  in  utter  contempt  of  the  con- 
stitution ;  after  the  very  solemn,  and  repeated  declarations  as  to  the 
constitutional  oblic^ation  the  legislature  was  under  to  secure  it  to 
him  during  the  continuance  of  his  commission,  that  had  been  so 
carefully  expressed  and  recorded. 

But,  it  may  be  said,  that  if  the  act  of  1798  is  suffered  to  expire, 
the  act  of  1792  will  be  virtually  revived  ;  and,  from  the  nature  of 
the  last  mentioned  act,  it  cannot  be  repealed ;  and,  therefore,  the 
salary  cannot  be  reduced  below  v,diat  the  act  of  1792  has  given. 
This  position  concedes  the  point,  that  the  legislature  is  limited  in 
its  control  over  a  part  of  the  amount  of  the  salary.  Now,  if  the 
General  Assembly  had  intended,  by  the  act  of  1798,  to  hold  a  dis- 
cretionary power  over  the  sum  of  three  hundred  and  twenty-Jive 
pounds,  which  is  the  difference  between  the  salary  given  by  the  act 
of  1792,  and  that  given  by  the  act  of  1798,  why  was  not  the  well 
known  and  established  precedent  followed,  of  giving  that  additional 
sum  to  the  chancellor  annually  as  judge  of  the  land  office  ?  But  the 
Tnanner,  and  the  character  in  which  the  salary  was  given,  have  left 
not  the  least  doubt  about  the  meaning  of  the  General  Assembly,  in 
passing  the  act  of  1798.  The  act  of  1797,  ch.  71,  having  added 
to  the  chancellor's  salary,  in  a  dubious  form,  by  giving  the  addi- 
tion to  him  "as  chancellor  and  judge  of  the  land  office,''''  it  was  not 
perfectly  certain,  that  the  indicated  'character  "  as  chancellor,''^ 
would,  when  qualified  by  the  expression,  "  and  judge  of  the  land 
office,''''  draw  after  it  the  constitutional  security  to  the  whole  or  only 
to  a  part  of  this  addition  ;  and,  therefore,  to  remove  this  doubt, 


652  THE  CHANCELLOR'S  CASE, 

and  to  clear  away  all  ambiguity,  at  the  following  session,  by  the 
act  of  1798,  ch.  86,  the  whole  was  given  to  the  chancellor,  as 
chancellor;  manifestly  with  the  intention  of  drawing  over  the  whole 
salary,  that  constitutional  guarantee  and  security  which  indisputably 
and  rightfully  belonged  to  such  a  salary  when  given  to  the  chan- 
cellor as  chancellor. 

That  this  was  the  distinct  understanding  of  those  legislators 
who  passed  the  act  of  1798,  will  be  placed  beyond  all  manner  of 
doubt,  by  comparing  the  phraseology  and  allusions  of  the  act  of 
1792,  with  those  of  the  act  of  1798.  Prior  to  the  year  1792,  the 
chancellor  had  received  some  additional  compensation  as  judge  of 
the  land  office  ;  and,  it  is  to  that,  which  the  act  of  that  year  refers 
by,  the  expressions,  ^^for  all  duties  and  services  whatever  prescribed 
or  to  he  prescribed  by  law.''''  In  other  words,  that  legislature  meant 
to  say,  that  the  chancellor  shall  no  longer  be  compensated  in  two  dif- 
ferent characters  ;  the  one  part  of  the  compensation  to  be  secured 
according  to  the  constitution,  and  the  other  during  pleasure;  but, 
that  the  whole  should  be  constitutionally  given  and  secured  to  him  as 
chancellor.  By  the  act  of  1797,  ch,  71 ,  a  part  of  the  chancellor's  com- 
pensation was  given  to  him  "as  chancellor  and  judge  of  the  land 
office."  And,  therefore,  when,  by  the  act  of  1798,  ch.  86,  the  legis- 
lature declare,  "  that  the  chancellor  shall  be  entitled  to  receive ybr  all 
duties  and  services  whatever  prescribed  or  to  be  pirescribed  by  law, 
an  annual  salary  of  twelve  hundred  and  seventy-five  pounds,"  they 
meant  precisely  the  same  thing,  by  those  identical  same  words, 
that  was  meant  by  the  legislature  of  1792 ;  that  is  to  say,  that 
the  whole  of  the  chancellor's  compensation,  as  well  that  which 
had  been  constitutionally  secured  to  him,  as  that  which  had  been, 
until  then,  bestowed  upon  him  during  their  pleasure,  should  all, 
henceforth,  be  secured  to  him  during  the  continuance  of  his 
commission. 

The  last  House  of  Delegates,  in  exceptingthc  act  of  1797,  ch. 
71,  from  their  general  continuing  law,  evidently  acted  under  the 
impression  and  belief,  that  whatever  salary  was  given  to  the  chan- 
cellor, as  chancellor^  was  secured  to  him  during  the  continuance  of 
his  commission.  For,  if  they  were  not  so  impressed,  why  did  they 
in  express  terms  refuse  to  continue  that  law,  which  had  never  been 
continued  ;  and,  by  its  own  limitation,  had  expired  more  than 
twenty  years  previous  to  that  time  ?  But  seeing,  that  the  additional 
salary,  given  by  the  act  of  1797,  ch.  71,  was  given  to  the  chan- 
cellor, "  as  chancellor  and  judge  of  the  land  office  i'"'  and  apprehend- 


THE  CHANCELLOR'S  CASE.  553 

ing,  that  although  it  was,  in  some  respects,  temporary  in  its  terms ; 
and  although  it  had  never  been  continued  by  any  legislative  act ; 
yet,  that  it  would  be  virtually  continued  by  operation  of  the  con- 
stitution ;  they,  therefore,  deemed  it  necessary,  expressly  and  by 
name,  to  except  this  act  out  of  the  operation  of  their  general  con- 
tinuing law ;  or,  in  other  words,  to  discontinue  it ;  and,  as  they 
believed,  to  make  such  a  declaration  respecting  it  as  would  be  equi- 
valent to  an  absolute  repeal.  If  such  was  their  understanding  of 
the  act  of  1797,  when  taken  in  connection  with  the  constitution — 
and  it  is  difficult  to  perceive  how  they  can  be  otherwise  understood — 
the  last  House  of  Delegates  were  certainly  correct  in  considering 
both  of  these  acts ;  as  well  that  of  1797,  as  the  one  of  1798 ;  as 
well  that  which  had  not,  as  that  which  had  been  continued,  as 
standing  in  the  way  of  the  execution  of  their  resolution  to  reduce 
the  chancellor's  salary.  But  the  act  of  1798,  ch.  86,  virtually  and 
effectually,  repeals  all  antecedent  acts  which  had  been  passed  for 
ascertaining  and  fixing  the  amount  of  the  chancellor's  salary ;  and 
is,  itself,  firmly  and  immovably  sustained  by  the  Declaration  of 
Rights  ;  and  needs  no  continuing,  or  other  act,  for  the  mere  pur- 
pose of  designating  what  shall  be  the  amount  of  the  chancellor's 
salary. 

So  much  then,  as  to  all  those  acts,  which  speak  of,  or  in  any 
manner  have  heretofore,  compensated  the  chancellor  in  his  cha- 
racter o^  judge  of  the  land  office.  The  whole  of  them  might  have 
been  passed  over  in  silence,  if  the  Delegates  of  the  last  session 
had  not  invoked  them  into  this  controversy.  But,  it  is  believed, 
that,  in  whatever  manner  they  may  be  considered,  nothing  can  be 
deduced  from  them,  which  can,  in  anyway,  impair  the  right  which 
the  present  chancellor  has  to  the  salary  designated  by  the  act  of 
1798.  Let  us  now  proceed  to  the  consideration  of  those  acts  of 
Assembly  under  which  the  chancellor  has  been  heretofore,  and 
until  the  26th  day  of  February  last,  compensated  for  his  services 
as  chancellor. 

Whatever  inference  may  be  deduced  from  the  language  of  the 
first  section  of  the  act  of  1798 ;  and,  however  conclusive  it  may 
seem  to  be,  that  any  salary  given  to  the  chancellor,  as  chancellor, 
must  be,  and  is  secured  to  him,  by  virtue  of  the  Declaration  of 
Rights,  during  the  continxLance  of  his  commission  ;  yet,  it  may  be 
said,  that  in  this  instance,  and  from  this  act  of  1798,  no  such 
inference  can  be  deduced  ;  no  such  intention  can  be  ascribed 
to  the  legislature  who  passed  it.     Because,  by  the  second  sec- 


654  THE  CHANCELLOR'S  CASE. 

tion  it  is  expressly  declared,  that  "  this  act  is  to  continue  and 
be  in  force  till  the  tioentieth  day  of  October,  eighteen  hundred, 
and  until  the  end  of  the  next  session  of  Assembly  lohich  shall  hap- 
pen thereafter. ^^  In  consequence  of  which  limitation,  it  was,  by 
the  act  of  1800,  ch.  87,  continued  to  the  30th  of  October,  1805, 
and  the  next  session  of  Assembly  thereafter ;  and  has  been  con- 
tinued from  time  to  time  since,  until  the  26th  day  of  February, 
1825 ; — which  express  limitation,  and  reiterated  continuances 
do,  in  the  most  positive  and  distinct  manner,  exclude  every  thing 
like  a  perpetual  character  from  this  act,  in  every  manner  and  form 
whatever. 

If  this  act  related  to  the  salary  of  the  State's  agent ;  the  adju- 
tant general ;  or  any  other  salary,  which  the  legislature  may  give 
or  take  away  at  pleasure  ;  or,  if  it  related  to  any  subject,  the  power 
of  legislating  on  which  was  restricted,  in  no  manner  whatever, 
by  the  constitution,  then  it  could  not  be  denied,  that  this  act 
would  be  altogether  temporary  in  its  nature ;  and,  unless  con- 
tinued or  otherwise  provided  for,  would  expire  at  the  appointed 
time.  But,  this  act  of  1798,  is  in  no  respect  a  law  of  that 
description.  It  relates  to  a  salary,  the  security  and  duration  of 
which  is  fixed  by  the  Declaration  of  Rights.  The  legislative 
power  over  the  subject  of  this  law  is,  expressly  and  positively 
restricted  and  limited  by  the  constitution  ; — and  being  an  act 
of  this  latter  description,  it  must  be  construed  and  governed 
accordingly. 

Respecting  judicial  salaries,  there  are  three  distinct  positions, 
which  have  been,  long  since,  clearly  established  ;  and  which  have 
grown  up  and  become  incorporated  with  our  political  system. 
The  first,  regards  the  amount  of  such  a  salary ;  the  second  its 
duration  ;  and  the  third  the  appropriation,  or  provision  for  its  pay- 
ment. To  keep  our  ideas  clear  upon  any  subject,  and  to  reason 
correctly,  we  should  carefully  designate  things,  that  differ,  by 
appropriate  names.  We  think  only  through  the  medium  of  words ; 
and,  according  to  one  of  the  ablest  and  the  best  of  the  English 
lawyers,  "  the  names  of  things  are,  for  avoiding  confusion,  dili- 
gently to  be  observed."  The  amount;  the  duration ;  and  the 
appropriation  for  the  payment  of  a  judicial  salary,  are  the  three 
distinct  points,  which  it  is  necessary,  constantly,  to  bear  in  mind, 
while  considering  this  subject.  The  first  is  partially  regulated  by 
the  constitution  ;  the  second  is  specifically  and  exactly  defined  by  it ; 
and  the  third  is  at  the  discretion  of  the  legislature ;  subject  to  cer- 


THE  CHANCELLOR'S  CASE.  655 

tain   qualifications,  arising   out   of  tiie   constitutional  provisions 
affecting  the  two  first  points. 

The  Declaration  of  Rights  directs,  that  a  salary  shall  be  secured 
to  the  chancellor.  A  salary  is  a  specified  annual  sum  of  money. 
The  constitution  is  silent  as  to  the  amount  of  the  sum  thus  directed 
to  be  secured ;  hence,  the  ascertaining  and  fixing  that  amount^  neces- 
sarily, and  is  expressly  devolved  upon  the  legislature.  It  belongs, 
exclusively  to  the  General  Assembly  to  say  what  shall  be  the 
amount  of  the  salary.  But,  along  with  this  discretionary  power, 
as  to  the  amount^  the  Declaration  of  Rights  has  imposed  an  obli- 
gation, not  only  to  give  a  salary,  but  to  secure  it.  The  manifest 
and  necessary  consequence  of  its  being  secured^  is,  that  the 
amount,  once  specified,  may  be  increased^  but  cannot  be  dimin- 
ished. A  salary,  being  a  particular  amount  or  sum  of  money,  to  be 
secured,  must  be  so  in  every  part  and  for  the  whole  : — It  must  be 
preserved  entire,  without  the  least  subtraction  or  diminution ; 
otherwise,  it  cannot,  in  any  sense,  be  said  to  be  secured.  But,  a 
salary  may  be  increased  indefinitely ;  because  no  addition  can,  in 
any  way,  impair  the  security  of  any  amount  w^hich  had  been  pre- 
viously given.     Let  us  illustrate  this  by  example. 

The  legislature,  in  1785,  secured  to  the  chancellor  a  salary  of 
six  hundred  and  fifty  pounds,  and,  in  1792,  they  increased  his 
salary  to  nine  hundred  and  fifty  pounds,  which  they,  in  like 
manner,  secured  to  him.  Now,  it  is  obvious,  that  the  addition 
of  the  three  hundred  jwunds  necessarily  left  the  security  of  the 
six  hundred  and  fifty  pounds,  which  had  been  previously  given, 
wholly  unimpaired  ;  that  salary  was  still,  in  every  sense,  secure  ; 
since  it  is  certain,  that  the  greater  always  includes  the  less. 
But  suppose  the  salary  given,  in  1785,  had  been  nine  hundred 
and  fifty  pounds  ;  and,  in  1792,  it  had  been  reduced  to  six  hun- 
dred and  fifty ;  it  is  manifest,  that  such  a  reduction  would  have 
been  a  violation  of  the  security  of  the  salary  of  nine  hundred  and 
fifty  pounds.  Hence  it  is  clear,  that  the  legislature  are  under  a 
constitutional  obligation  to  give  a  salary ;  that  it  is  perfectly  dis- 
cretionary with  them  to  determine,  in  the  first  instance ;  or, 
while  the  judicial  office  is  vacant ;  or,  wlien  it  shall  become  so  ; 
what  shall  be  the  amount  of  the  salary- ;  and,  that  when  they 
have  determined  the  amount,  they  cannot  render  it  insecure  by 
withholding  it  altogether,  or  in  any  manner  diminishing  its 
value.  The  legislative  discretion  over  the  amount  of  the  chan- 
cellor's salary  is,  thus,  partially  restricted  and  controlled.     The 


656  THE  CHANCELLOR'S  CASE. 

Assembly  may  fix  it,  at  any  amount ;  but,  when  fixed,  although 
it  may  be  increased ;  it  canaot  be,  in  any  manner,  diyninisJied, 
to  the  prejudice  of  any  chancellor,  during  the  continuance  of  his 
commission. 

This  restriction,  as  to  duration,  which  prevents  the  diminu- 
tion of  judicial  salaries,  if  it  were  indefinite,  might,  possibly, 
become  the  means  of  accumulating  the  most  serious  burthens 
upon  the  State.  But,  it  is  not  indefinite ;  it  has  been  expressly 
limited  to  the  period  during  which  the  officer  holds  his  commis- 
sion ;  which  is,  in  effect  and  at  most,  no  more  than  during  the 
short  period  of  the  latter  years  of  the  life  of  a  single  individual. 
It  is  declared,  that  the  salary  of  the  chancellor  shall  be  secured 
to  him  during  the  continuance  of  his  commission.  This  restric- 
tion, upon  the  legislative  authority,  in  this  particular,  is  com- 
plete, absolute,  and  entire.  No  mere  legislative  act  can  either 
invigorate  or  enfeeble  the  force  of  this,  or  any  other  constitu- 
tional provision.  The  recital  of  the  thirtieth  article  of  the  Decla- 
ration of  Rights  as  in  the  act  of  1785,  ch.  27,  may  be  considered 
as  a  declaration,  that  the  legislature  then  acted  in  special  obedi- 
ence to  the  command  of  that  article ;  but,  it  neither  adds  to,  nor 
subtracts  any  thing  from  its  force.  It  is  the  article,  not  the  act, 
which  binds  every  future  legislature.  The  whole  force  of  the 
restriction,  upon  the  discretionary  power  of  the  General  Assembly, 
in  this  particular,  arises  from  the  operation  of  the  constitutio?ial  pro- 
vision ;  not  from  any  thing  that  can  be  said  in  a  mere  legislative  act. 
It  is  very  clear,  therefore,  that  whatever  expressions  are  to  be 
found  in  any  of  the  acts,  relative  to  the  duration  of  the  chancellor's 
salary,  are  mere  surplusage.  Those  laws  are,  so  far,  a  mere  dead 
letter ;  if  they  conform  to  the  constitution,  it  is  well ;  if  not,  they 
are  absolutely  void. 

The  third  and  last  point  relates  to  the  appropriation  or  provision 
for  the  payment  of  judicial  salaries.  As  to  this,  there  are  no  two 
ideas  more  clear,  or  more  easily  understood  than  the  contracting 
of  a  debt,  and  the  making  provision  for  its  payment.  This  dis- 
tinction, as  regards  the  public,  between  the  obligation  by  which 
a  debt  is  secured ;  and  the  appropriation  to  pay  it,  is  a  prac- 
tical one,  which  has  been,  from  the  very  beginning,  interwo- 
ven with  all  our  fiscal  concerns.  During  our  revolution,  the 
General  Assembly  were,  in  many  instances,  negligent  of  their 
appropriations,  and  made  them  too  general  and  vague ;  but,  at 
the  close  of  the  war,  they  were  reminded  of  the  importance  oi 


THE  CHANCELLOR'S  CASE.  657 

having  them  distinct  and  specific,  by  the  Intendant  of  the  revenue, 
who  said  to  them,  in  his  report  of  the  14th  of  May,  1783,  to  the 
House  of  Delegates,  that  "  as  peace  is  now  established,  he  beo-s 
leave  humbly  to  suggest  the  propriety  of  appropriating  all  moneys 
in  such  manner,  that  the  application  and  payment  thereof  cannot 
be  mistaken  by  the  treasurer."  And,  profiting  by  this  intimation, 
the  legislature,  in  one  of  their  acts  of  that  session,  say,  that  "  it  is 
of  singular  consequence,  that  all  and  every  appropriation  should 
be  executed  agreeably  to  the  order  and  intent  of  the  General 
Assembly ;  and  that  the  Assembly  should  be  enabled,  at  each  ses- 
sion, tojudgeof  the  state  of  said  appropriations^''''  Lc.  A  multitude 
of  instances  might  be  adduced,  from  our  statute  book,  of  specific 
appropriations  of  particular  funds,  and  of  designated  portions  of  the 
public  moneys  being  applied  to  the  payment  of  particular  debts. 
The  warm  party  controversies  about  specific  appropriations y  under 
the  federal  government,  which  once  pervaded  the  Union,  is  within 
the  recollection  of  every  one. 

But,  as  this  distinction,  between  the  contract,  and  the  appro- 
priation, has  an  important  bearing  upon  the  subject  now  under 
consideration  ;  it  is  of  "  singular  consequence,"  that  it  should  be 
exemplified,  illustrated,  and  fully  understood,  as  regards  judicial 
salaries.  The  General  Assembly  of  November  1785,  secured  the 
chancellor's  salary,  according  to  the  Declaration  of  Rights,  during 
the  continuance  of  his  commission.  And,  in  the  before  recited 
message  of  the  Delegates  to  the  Senate,  of  the  23d  of  January  of 
that  session,  they  say,  "  If  time  will  permit,  we  shall  attempt 
to  provide  particular  funds  to  secure  the  payment  of  the  sala- 
ries established  by  our  bill ;"  that  is,  by  the  act  of  1785,  ch.  27. 
It  appears,  that  after  that  bill  became  a  law,  which  was  on  the  7th 
of  February  1786,  "  leave  was  given  to  bring  in  a  bill  to  provide, 
and  appropriate  a  permanent  fund  for  the  payment  of  the  sala- 
ries to  the  chancellor  and  judges."  But,  it  seems,  as  had  been 
expected,  there  was  not  time,  during  that  session,  to  provide  a 
fund,  as  was  proposed ;  and  the  subject  was  not  called  up  again. 
By  the  third  section  of  the  act  of  1785,  ch.  27,  it  was  declared, 
that  the  salaries  of  the  chancellor  and  judges  should  be  paid  "  out  of 
the  surplus  raised  every  year,  until  the  General  Assembly  shall  make 
other  provision  for  payment.'''  Thus,  the  constitutional  obhgation 
to  pay  the  chancellor  his  salary,  during  the  continuance  of  his 
commission,  is,  most  clearly  and  distinctly,  recognised  by  the  acts 
of  that  session  ;  and  yet,  the  same  enlightened  legislators,  no  less 

83 


658  THE  CHANCELLOR'S  CASE. 

clearly  and  distinctly,  claim,  recognise,  and  reserve  to  the  Gene- 
ral Assembly  a  complete  discretionary  power  over  the  appropriation, 
the  mode  of  making  provision  for  payment. 

By  the  act  of  1792,  ch.  76,  it  is  declared,  that  the  chancellor's 
salary  shall  be  paid  to  him  "  during  the  continuance  of  his  com- 
mission." And,  by  the  third  section  of  the  same  act,  it  is  declared, 
that  to  "  secure  the  punctual  payment  of  said  salary,"  certain  taxes 
on  proceedings  in  chancery  and  in  the  land  office  should  be  levied 
and  collected ;  and,  if  they  should  not  bring  into  the  treasury  a 
sufficiency,  "  the  deficiency  should  be  made  up  out  of  any  moneys 
in  the  treasury  arising,  or  to  arise  from  the  sale  of  vacant  lands." 
And  then,  by  the  fifth  section,  it  is  declared,  that  "  the  said  taxes 
shall  be  collected  and  paid  for  five  years  after  the  end  of  the  pre- 
sent session  of  Assembly,  and  no  longer.^''  This,  then,  is  a  clear 
instance  of  the  express  constitutional  continuance  of  the  salary, 
and  the  actual  limitation  of  the  fund,  out  of  which  it  was  to  be 
paid ;  of  a  salary  given  during  the  continuance  of  the  commission, 
and  of  a  temporary  appropriation  for  its  payment;  (t)) 

{v)  This  distinction  between  the  duration  of  a  judge's  salary  and  an  appropriation 
for  its  payment,  is  also  strikingly  exemplified  by  the  last  act  of  parliament  passed  in 
the  yezT  1760,  (1  Geo.  3,  c.  23,)  in  relation  to  the  commissions  and  salai-ies  of  the 
English  judges  ;  by  which,  after  reciting,  that  the  king  had  declared,  that  he  lookea 
upon  the  independency  and  uprightness  of  judges  as  essential  to  the  impartial  admin- 
istration of  justice,  as  one  of  the  best  securities  to  the  rights  and  liberties  of  his  sub- 
jects, and  as  most  conducive  to  the  honour  of  his  crown  ;  it  was  enacted,  that  the 
commissions  of  judges  should  continue  in  full  force  during  their  good  behaviour  not- 
witlistanding  the  demise  of  the  king ;  provided  that  it  should  be  lawful  for  the  king 
to  remove  any  judge  upon  the  address  of  both  houses  of  parliament :  And  that  such 
salaries  as  were  settled  upon  judges  by  act  of  parliament,  and  also  such  as  should  be 
granted  to  them  by  the  king  should  be  paid  to  them  so  long  as  tlieir  commissions 
should  remain  in  force.  And  then  it  was  further  enacted,  "  That  such  salaries  of 
judges  as  are  now  or  shall  become  payable  out  of  the  annual  rent  or  sum  granted  for 
the  support  of  his  majesty's  household,  and  of  the  honour  and  dignity  of  the  crown, 
shall,  li'om  time  to  time,  after  the  demise  of  his  majesty,  or  any  of  his  heirs  and  suc- 
cessors, be  charged  upon  and  paid  and  payable  out  of,  such  of  the  duties  or  revenues 
granted  for  the  uses  of  the  civil  government  of  his  majesty,  his  heirs  and  successors, 
as  shall  be  subsisting  after  every  such  demise  respectively,  until  some  further  or 
other  provision  be  made  by  parliament  for  the  expenses  of  civil  government ;  and 
from  and  immediately  after  the  making  of  such  provision,  and  during  the  continu- 
ance thereof,  such  salaries  shall  be  paid  and  payable  out  of  all  or  any  of  the  moneys 
which  shall  be  applicable  to  such  uses  and  expenses  as  aforesaid." 

Lord  Coke,  in  speaking  of  the  court  of  exchequer,  informs  us,  that  "  the  chief 
baron  is  created  by  letters  patent,  and  the  office  is  granted  to  him  qmmdiu  se  bene 
gesserU,  wherein  he  hath  a  more  fixed  estate  (it  being  an  estate  for  life,)  than  the 
justices  of  either  bench,  who  have  their  offices  but  at  will :  and  quamdiu  se  bene 
gcsserit  must  be  intended  in  matters  concerning  his  office,  and  is  no  more  than  the 


THE  CHANCELLOR'S  CASE.  659 

It  may,  therefore,  be  laid  down,  from  the  wliole  course  of  the 
'government ;  and  from  these  solemn  and  well  considered  acts  of 
the  legislature,  as  a  fa-mly  established  constitutional  principle,  that 
the  chancellor's  salary  is  a  debt  due  to  him  from  the  State ;  gua- 
ranteed, not  by  any  act  of  Assembly^  but  by  the  constitution  ;  the 
appropriation  for  the  payment  of  which  is  to  be  made  by  the  legis- 
lature ;  that  is,  the  amount  being  fixed,  it  is  to  be  paid,  to  use  the 
words  of  the  Declaration  of  Rights,  "  in  such  manner,  and  at  such 
times  as  the  legislature  shall  hereafter  direct."  Bearing  in  mind 
these  three  important,  and  settled  distinctions,  between  the  amount, 
the  duration,  and  the  appropriation  for  a  judicial  salary,  let  us  now 
proceed  cautiously  to  consider  the  act  under  which  the  present 
chancellor  claims  his  salary. 

The  council  proceedings  will  show,  that  on  the  sixteenth  day 
of  August,  eighteen  hundred  and  twenty-four,  the  present  chan- 
cellor was  unanimously  appointed  by  the  governor  and  council ; 
and,  that,  on  the  eighteenth  day  of  the  same  month,  he  took  the 
oaths  of  office,  had  the  great  seal  of  the  State  delivered  to  his 
keeping,  and  entered  upon  the  duties  of  his  office.  What  was 
then  the  salary  assigned  to  the^  chancellor,  he  contends  does  now, 
constitutionally,  belong  to  him ;  on  the  ground,  that  whatever  was 
then  declared,  by  law,  to  be  the  amount  of  the  chancellor's  salary, 
was,  by  force  and  operation  of  the  Declaration  of  Rights,  secured 
to  the  chancellor,  who  then  came  into  office,  during  the  continuance 
of  his  commission. 

The  present  chancellor  claims  his  salary  under  and  by  virtue  of 
the  act  of  1798,  ch.  86,  and  the  thirtieth  article  of  the  Declaration 
of  Rights.  This  act  of  Assembly  is  entitled  "  A  supplement  to 
the  act  entided  an  act  for  establishing  and  securing  the  salary  of 

law  would  have  implied,  if  the  office  had  been  s;rantod  for  life.  And  in  like  manner 
are  the  rest  of  the  barons  of  the  exchequer  constituted,  and  the  patents  of  the  attor- 
ney general  and  solicitor,  are  also  quamdiu  se  bene  gesserit." — (4  Inst.  117.) 

But  notwithstanding  what  is  here  said  by  Coke,  it  would  seem  that  any  of  these 
officers  might  have  been  removed  at  the  pleasure  of  the  king,  without  the  institution 
of  any  judicial  proceeding,  or  the  interposition  of  parliament;  for  all  the  lawyers 
and  historians  of  England,  speak  of  the  constitutional  independency  of  the  judges  as 
an  improvement  which  was  not  finally  established  until  the  year  1700,  long  after  the 
death  of  Coke,  (ante  615,  note  (h.) ;  3  Hal.  Const.  Hist.  Eng.  262;  SmoUcfs  Hist. 
Eng.  ch.  6,  14,  &  16.)  It  is  most  likely,  that  the  provision  of  our  original  constitu- 
tion, (art.  40,)  which  declares  "  that  the  chancellor,  all  judges,  i/ie  attorney  general, 
&.C.  shall  hold  their  commissions  during  good  behaviour,"  &c.  was  suggested  by  what 
is  here  said  by  Lord  Coke  ;  which  provision  as  to  the  attorney  general  has,  how- 
ever, been  since  altered,  1816,  ch.  217,  confirmed  by  1S17,  ch.  69. 


660  THE  CHANCELLOR'S  CASE. 

the  chancellor."  And  it  is  enacted,  "  that  the  chancellor  shall  be 
entitled  to  receive,  for  all  duties  and  services  whatever  prescribed 
or  to  be  prescribed  by  law,  an  annual  salary  of  twelve  hundred  and 
seventy-five  pounds  current  money,  and  no  more,  to  be  paid  quar- 
terly by  the  treasurer  of  the  Western  Shore."  And  then  imme- 
diately follows  the  second  section  limiting  the  duration  of  the  act 
in  these  words  ;  "  This  act  to  continue  and  be  in  force  till  the 
twentieth  day  of  October,  eighteen  hundred,  and  until  the  next 
session  of  Assembly  which  shall  happen  thereafter." 

The  limitation  of  this  act  operates  so  far,  and  so  far  only,  as  it 
is  compatible  with  the  Declaration  of  Rights.  In  so  much  as  it 
contravenes  the  constitution,  it  is  a  nullity ;  but,  in  other  respects, 
it  may  be  allowed  to  operate  according  to  the  express  or  implied 
intention  of  the  legislature.  This  act  specifies  the  amount  of  the 
chancellor's  salary  ;  and,  that  amount,  not  by  the  act,  but  by  the 
Declaration  of  Rights,  is  secured  to  the  chancellor  during  the  con- 
tinuance of  his  commission.  So  far,  then,  the  constitution  expressly 
cuts  off  and  prevents  the  operation  of  the  limitation  of  the  second 
section.  But,  upon  other  matters,  this  limitation  may  have  its  full 
effect.  Upon  the  general  appropriation,  or  authority  to  pay  that 
amount  out  of  any  money  in  the  treasury  of  the  Western  Shore,  it 
may  and  does  operate  ;  because,  as  to  the  fund  to  be  appropriated, 
and  as  to  the  mode  of  making  provision  for  payment,  the  legislature 
has  a  discretionary  power ;  and,  as  to  that,  they  may  make  an  express 
reservation  of  the  right  to  appropriate  at  pleasure,  as  was  done  by 
the  act  of  1783  ;  or,  they  may  make  a  special,  and,  also  a  limited 
appropriation,  as  was  done  by  the  act  of  17&2.  Because,  as  we 
have  seen,  the  amount,  and  duration  of  the  salary  being  wholly  dis- 
tinct from  the  appropriation,  or  "  the  provision  for  payment,"  as  it 
is  called  by  the  act  of  1785,  the  two  first  are  secured,  during  the 
period  specified  by  the  constitution  ;  and  the  other  is  at  the  plea- 
sure of  the  legislature. 

The  three  acts  of  1785,  of  1792,  and  of  1798,  arc,  then,  all  of 
them  in  their  objects,  intentions,  and  principles  precisely  alike,  in 
every  particular.  They,  each  of  them,  bestow  upon  the  chancel- 
lor a  specified  amount  of  salary ;  which  was,  in  each  instance,  by 
operation  of  the  Declaration  of  Rights,  secured  to  the  chancellor 
during  the  continuance  of  his  commission ;  and,  in  each  instance,  the 
legislature  reserved,  or  expressly  exercised  a  discretionary  power  over 
the  appropriation,  or  "  provision  for  payment."  And  these  distinct 
ideas,  in  this  train  of  thinking,  were  obviously,  as  the  acts  them- 


THE  CHANCELLOR'S  CASE.  652 

selves  prove,  present  to  the  minds  of  the  legislature  during  the 
passage  of  each  one  of  them. 

The  General  Assembly  of  1785,  distinctly  inform  us,  in  every 
■way,  by  their  messages,  by  the  acts  which  Ihey  proposed  to  pass, 
and  by  the  act  vi'hich  tney  actually  did  pass  into  a  law,  that  they 
could  only  fix  the  amount  of  the  chancellor's  salary ;  that  when 
they  had  so  fixed  it,  that  amount  was  secured  by  operation  of  the 
Declaration  of  Plights  ;  but,  that  the  appropriation  might  be  made 
in  such  manner  as  they  thought  proper ;  and,  accordingly,  they 
expressly  declared,  that  their  general  appropriation  should  remain 
only  until  they  "  make  otiier  provision  for  payinent."  The  evidences 
as  to  the  opinions  of  the  General  Assembly  of  1792,  are  not  so 
various  and  large ;  but,  they  are  no  less  distinctly  expressed  in 
the  act  which  they  passed  upon  the  subject.  Their  act  recites, 
that  the  salary-  which  they  gave  was  secured  by  the  constitution  ; 
and,  then  it  asserts  and  exercises  a  discretionary  power  over  the 
appropriation,  by  setting  apart  a  particular  fund,  and  limiting  its 
continuance  to  five  years,  and  no  longer. 

There  is  sufficiently  unequivocal  evidence,  that  the  same  dis- 
tinct ideas  were  present  to  the  minds  of  the  General  Assembly 
of  1798;  and,  that  they  too  acted  under  the  influence  of  the  same 
opinions.  Their  act  upon  this  subject  is  entitled,  ".^  supplement 
to  the  act,  entitled  an  act  for  establishing  and  securing  the  salary 
of  the  chancellor."  Thus  expressly  referring  to  that  law,  in  which 
all  those  ideas  and  distinctions,  and  all  that  train  of  thinking  upon 
this  subject,  which  had  been  so  thoroughly  discussed  and  consid- 
ered, at  the  session  of  1785,  and  reconsidered,  and  reaffirmed  at  the 
session  of  1792,  were  strongly  and  clearly  recalled,  and  placed 
before  the  minds  of  the  legislators  of  1798. 

And  why  was  this  done  ?  Why  was  the  act  of  1798  called 
"^  supplement^''  to  that  of  1792?  Why  were  the  previous  legis- 
lative acts  thus  referred  to  ?  Surely,  it  could  not  have  been  done 
for  the  purpose  of  bringing  before  the  eyes  of  the  legislators  of 
1798,  an  example  of  the  prostration  of  any  of  the  securities  of 
good  government.  It  certainly  could  not  have  been  done,  for  the 
purpose  of  reading  them  a  lesson,  as  to  the  mode,  and  the  pretexts, 
and  the  expedients  under  which  the  constitution  might  be  evaded 
or  violated.  It  could  not  have  been  intended  to  read  the  most 
solemn  recognitions  of  constitutional  principles  for  the  purpose  of 
obliterating  or  smothering  them.  It  would  be  monstrous  to  sup- 
pose, that   any  legislators   would    invoke,  and  place  upon  their 


^62  THE  CHANCELLOR'S  CASE. 

tables,  the  clearest  evidences  of  the  chancellor's  constitutional 
independency,  for  the  express  purpose  of  prostrating  it ;  and,  of 
making  him  the  mere  supple  creature  of  either  branch  of  the  Assem- 
bly ;  and  that  too,  not  by  a  bold  and  open  movement,  which  struck 
down  his  rights  at  a  single  blow ;  but,  by  the  low  and  crawling 
contrivance  of  a  temporary  act ;  which,  while  it  offered  an  osten- 
sible extension  of  bounty,  covertly  and  in  reality  bought  out  the 
chancellor's  independency^  the  chief  stay,^  the  pride,  and  the  only 
blessing  of  his  high  and  laborious  station.  No  such  designs  can, 
or  ought  to  be  imputed  to  the  legislators  of  1798. 

On  the  contrary,  those  legislators  could  have  had  no  other  inten- 
tion, in  thus  announcing  their  act  as  '■'■  A  supplement''^  to  that  of 
1792,  than  to  assert,  by  the  very  first  word  they  recorded  upon  the 
statute  book,  that  they  followed  the  example,  and  legislated  under 
the  same  impressions,  and  according  to  the  same  principles,  that 
their  predecessors  had  done.  They  meant  to  say,  that  they  adopted 
the  principles  of  the  act  of  1792  ;  that  as  that  act  conformed  to  the 
Declaration  of  Rights,  in  giving  to  the  chancellor  a  salary  during 
the  continuance  of  his  commission ;  so  this,  their  act,  should  give 
him  a  salary  for  a  similar  duration.  That  as  the  act  of  1792  had 
made  only  a  temporary  provision  for  the  payment  of  the  amount 
then  given  ;  so  this,  their  act,  should,  in  like  manner,  temporarily 
provide  for  the  payment  of  that  they  gave.  The  act  of  1792  gave 
the  less,  this  the  greater  amount ;  the  act  of  1792  set  apart  di  par- 
ticular fund  for  payment ;  this  act,  in  general  terms,  directs,  that 
the  amount  given  shall  be  "  paid  by  the  treasurer  of  the  Western 
Shore."  These  are  the  points  of  similarity  and  of  difference 
between  these  two  acts.  The  latter  is,  then,  in  sense  and  sub- 
stance, honestly  and  fairly  "  A  supplement  j'"'  to  the  former.  It  fol- 
lows, therefore,  that  the  present  chancellor  is  now,  and  will  be 
entitled,  during  the  continuance  of  his  commission,  to  demand  and 
receive,  annually,  by  virtue  of  this  act  of  1798,  and  of  the  thirtieth 
article  of  the  Declaration  of  Rights,  the  sum  of  twelve  hundred 
and  seventy-five  pounds  current  money. 

These  three  distinct  ideas  of  the  amount,  the  duration,  and  the 
provision  for  payment  oi  ]\xd\ci2A.  S2\dxiQS  have  been  continually, 
under  all  circumstances,  and  on  every  change,  carefully  borne  in 
mind  by  the  representatives  of  the  people  of  Maryland.  After  the 
alteration  of  the  judicial  system  of  this  State,  made  by  the  act  of 

1804,  ch.  55,  was   confirmed,  the  legislature  passed  the  act  of 

1805,  ch.  86,  entitled  "  An  act  to  establish  permanent  salaries  for 


THE  CHANCELLOR'S  CASE.  6(^3 

the  judges  of  the  six  judicial  districts  of  this  State."  The  pre- 
amble of  which  recites,  that  "  whereas  by  the  thirtieth  section  of 
the  Declaration  of  Rights  it  is  declared,  that  salaries  liberal,  but 
not  profuse,  ought  to  be  secured  to  the  judges  during  the  continu- 
ance of  their  commissions."  Hence,  it  appears,  that  the  very  same 
legislative  body,  who  ratified  that  alteration  of  the  constitution  by 
which  the  present  judicial  system  was  established,  gives  us  dis- 
tinctly to  understand,  that  no  alteration  whatever  was  made  as  to 
the  security,  or  duration  of  judicial  salaries  ;  since  they  refer  to  the 
original  article  of  the  Declaration  of  Rights,  as  the  foundation  of 
that  security  and  duration.  And  they  tlius,  implicitly,  but  strongly, 
give  us  to  understand,  that  they  chose  rather  to  recur  to  first  prin- 
ciples, and  to  rest  judicial  independency  upon  the  more  broad  and 
firmly  established  doctrine  of  1776,  than  upon  any  provision  con- 
tained in  the  amendment  they  had  so  recently  adopted ;  and  by 
which  it  was  declared,  that  "  the  salaries  of  the  said  judges  shall 
not  be  diminished  during  the  period  of  their  continuance  in  office." 
But  it  is  remarkable,  that  in  the  enacting  clauses  of  this  act,  there 
is  not  one  syllable,  indicating,  in  any  way,  either  the  security,  or 
the  duration  of  the  salaries  given.  In  the  first  clause,  the  annual 
amount  only,  and  nothing  more,  is  specified.  After  which,  in  a 
separate  clause,  it  is  declared,  that  "  the  treasurer  of  the  Western 
Shore  shall  be  and  he  is  hereby  authorized  and  directed,  to  pay 
quarterly,  out  of  any  unappropriated  money  w^hich  may  be  in  the 
treasmy,  to  each  of  the  said  chief  judges  and  to  each  of  the  said 
associate  judges,  or  his  order,  the  salary  wdiich  he  is  entitled  to 
receive  by  law." 

The  sense  and  understanding  of  the  legislature,  as  expressed  by 
this  act,  deserve  particular  attention.  By  the  preamble  which  may 
sometimes  be  called  in  to  clear  away  an  ambiguity,  but  cannot  in 
any  case  be  allowed  to  control  the  enacting  clauses  of  a  law  ;  the 
section  of  the  Declaration  of  Rights,  in  obedience  to  which  the 
act  was  made,  is  referred  to  in  general  terms ;  but,  the  enactino- 
clauses  of  the  law  use  none  of  its  expressions,  nor  do  they  adopt 
or  deny  any  of  its  principles.  The  act  merely  designates  the 
amount  of  the  salaries ;  and  then  makes  a  general  appropriation 
out  of  which  the  treasurer  of  the  Western  Shore  is  directed  to  pay 
quarterly.  Whence,  then,  is  derived  the  security,  and  specific 
duration  of  these  judicial  salaries?  The  preamble  of  this  act  cor- 
rectly recites  the  sense  and  substance  of  what  is  required  by  the 
Declaration  of  Rights  ;  but,  it  does  not  itself  require,  command. 


(364  THE  CHANCELLOR'S  CASE. 

or  enact  any  thing.  And,  in  the  enacting  clauses,  there  is  not  one 
word  which  expresses  or  suggests  a  single  idea  upon  the  subject 
of  their  security  or  duration.  But  read  the  law,  and  the  thirtieth 
section  of  the  Declaration  of  Rights  together,  and  there  is  no  room 
for  any  doubt  whatever.  The  amount,  specified  by  the  law,  is 
secured,  by  the  constitution,  to  each  judge,  during  the  continuance 
of  his  commission.  So,  there  is  nothing  in  any  part  of  the  law 
itself,  that  declares,  or  from  which  it  may  be  inferred,  that  it  can- 
not be  repealed  or  altered  at  the  pleasure  of  any  succeeding  legis- 
lature. But,  the  nature  and  character  of  the  subject,  for  which  it 
provides,  inevitably  and  necessarily  carries  us  to  the  constitution, 
where  we  find  that  positive,  mandatory  clause,  which  prohibits 
the  withholding  or  diminishing  of  the  salaries  of  the  judges  during 
the  continuance  of  their  commissions. 

The  security  of  these  judicial  salaries,  given  by  this  act  of 
1805,  ch.  86,  therefore,  is  expressly  rested  upon  exactly  the  same 
basis,  which  sustains  the  salary  given  to  the  chancellor,  by  the  act 
of  1798.  The  only  difference  between  the  two  acts,  is  as  to  the 
manner  in  which  the  foundation  of  their  security  and  duration  is 
referred  to.  The  preamble  of  the  act  of  1805  leads  us  to  the 
foundation  of  the  security  and  duration  of  the  judges'  salaries,  by 
a  direct  reference  to  the  Declaration  of  Rights.  The  act  of  1798, 
in  a  different  manner,  but,  with  equal  certainty,  leads  us  to  the 
same  immovable  basis,  whereon  we  find  the  security  and  duration 
of  the  chancellor's  salary  reposes.  The  act  of  1805  makes  a 
general  appropriation,  and  directs  the  treasurer  of  the  Western 
Shore  to  pay  quarterly.  But,  as  to  this,  these  salaries  might  have 
been  made  payable,  as  by  the  act  of  1792,  out  of  a  special  fund,  to 
be  collected  from  taxes  on  proceedings  at  law  or  the  like  ;  or  the 
appropriation,  whether  general  or  special,  might  have  been  limited 
to  five  years,  as  by  the  act  of  1792,  or  to  two  years,  as  by  the  act 
of  1798,  or  even  from  year  to  year,  as  by  the  several  acts  continu- 
ing the  act  of  1798,  passed  since  the  year  1805.  There  is  then, 
in  point  of  principle,  when  taken  in  connection  with  the  Declara- 
tion of  Rights,  no  difference  whatever  between  any  two  of  these 
laws  relative  to  judicial  salaries.  They  are  all,  alike,  controlled 
by  the  constitution,  which  specifies  the  security  and  duration  of 
judicial  salaries  ;  and,  in  each  the  appropriation  is  suited  to  the 
occasion,  to  the  convenience  of  the  State,  or  to  the  then  opinion 
of  the  General  Assembly. 

It  may,  probably,  be  said,  that  the  suffering  of  the  act  of  1798 


THE  CHANCELLOR'S  CASE.  665 

to  expire,  or,  by  the  refusal  of  the  legislature  to  continue  it,  the 
act  of  1792  was  virtually  revived  and  again  in  force.  There  is 
not  one  syllable  to  be  found  recorded  in  the  votes  and  proceedings, 
of  the  last  session  of  either  branch  of  the  General  Assembly,  going 
to  show,  that  such  was  the  understanding  and  belief  of  the  legis- 
lature. But,  supposing  such  to  have  been  their  opinion,  the  posi- 
tion is  not  correct,  even  on  common  law  principles  ;  and  is  utterly 
untenable  according  to  our  constitution.  It  is  an  established  rule 
of  the  common  law,  that  by  the  repeal  of  a  repealing  statute,  the 
original  act  is  virtually  revived.  But,  that  is  not  the  case  now 
under  consideration.  It  is  this :  The  statute  of  1798  professes 
to  repeal  the  prior  act  of  1792,  by  substituting  other  provisions,  as 
to  the  whole  subject,  for  which  that  act  had  provided  :  and,  then 
the  act  of  1798  is,  in  general  terms,  limited  to  two  years.  Now,  in 
such  case,  it  has  been  adjudged,  that  the  prior  act  does  not  revive 
after  the  repealing  act  is  spent ;  unless  the  intention  of  the  legislature, 
to  that  effect,  be  expressed.  In  this  instance  no  such  intention  has 
been  expressed  ;  and,  consequently,  upon  common  law  principles., 
neither  of  those  acts  are  now  in  force  ;  and  our  statute  book  presents 
an  entire  blank  so  far  as  regards  the  chancellor's  salary,  (w) 

But,  let  it  be  conceded  for  a  moment,  and  by  way  of  argument, 
that  the  effect  of  discontinuing  or  suffering  the  act  of  1798  to 
expire,  would  be,  that  the  act  of  1792  would  be  revived. — It  cer- 
tainly will  not  be  contended,  that  the  effect  of  this  constructive 
revival  of  the  act  of  1792  would  be  a  complete  revival  of  the 
whole  of  it,  including  all  such  clauses  as  had  been  repealed  or 
altered  by  any  perpetual  and  now  subsisting  law.  By  a  virtual 
revival  of  a  law  nothing  more  has  been  ever  understood  to  be  thus 
revived,  than  that  which  would  have  continued  in  force,  had  it  not 
been  for  the  law,  which  was  repealed  or  had  expired.  This  is  the 
principle  of  a  constructive  revival,  it  goes  no  further.     Now  let  us 


(ly)  Warren  v.  Wendle,  3  East,  205 ;  The  King  v.  Rogers,  10  East,  569. 

1765,  ch.  33,  note,7;er  Hanson,  Chancellor. — It  may  be  necessary  to  remark,  that 
the  repealing  clause  of  this  act,  notwithstanding  its  expiration,  is  still  in  force.  There 
is  an  evident  and  material  distinction  between  a  temporary  act  containing  a  repeal- 
ing clause,  which  act  is  suffered  to  expire,  and  an  act  made  for  the  purpose  of  repeal- 
ing another  act,  whicii  is  afterwards  itself  repealed.  In  the  first  case,  the  legislature 
declares  its  intention,  that  an  act  be  done  away  and  rendered  void,  and  tliere  is  no 
proceeding  of  the  legislature  afterwards  to  restore  life  to  the  act  repealed.  In  the 
second  case,  the  legislature  expresses  the  same  intention,  but  afterwards  by  doing 
away  and  rendering  void  the  repealing  act,  its  intention  cannot  be  construed  other- 
wise than  to  give  new  life  to  the  act  repealed.— (ffrt/!30?!'s  Lau-s  of  Maryland.) 

84 


666  THE  CHANCELLOR'S  CASE. 

inquire,  and  endeavour  to  ascertain,  on  how  much  of  the  act  of 
1792  a  constructive  revival  would,  at  this  time,  operate. 

The  two  first  sections  of  the  act  of  1792,  specify  the  amount 
and  duration  of  the  chancellor's  salary ;  but,  they  make  no  provi- 
sion whatever  for  its  payment.  By  the  four  last  sections  a  parti- 
cular fund  was  to  be  raised,  for  that  purpose,  from  taxes  on 
proceedings  in  chancery  and  the  land  office.  From  that  fund,  the 
treasurer  was  directed  to  pay  the  chancellor's  salary,  if  it  should 
be  adequate  ;  if  not,  the  deficiency  was  to  be  made  up,  not  gene- 
rally out  of  any  money  in  the  treasury ;  but  "  out  of  any  moneys 
in  the  treasury  arising  or  to  arise  from  the  sale  of  vacant  land" — 
and,  it  was  declared,  that  "  the  said  taxes  shall  be  collected  and 
paid  for  five  years  after  the  end  of  the  present  session  of  Assembly 
and  no  longer."  By  the  act  of  1797,  ch.  51,  every  part  of  this 
act  "  relative  to  the  said  taxes  and  duties,"  was  continued  during 
the  term  of  seven  years,  and  until  the  end  of  the  next  session  of 
Assembly;  and  by  the  act  of  1804,  ch.  108,  "  the  fifth  section" 
of  the  act  of  1792,  ch.  76,  was  "  enacted  into  a  permanent  law  ;" 
provided  "  that  it  should  be  subject  to  any  alterations  which  have 
been  made  therein  since  the  passage  of  it."  But  by  the  act  of 
1804,  ch.  64,  passed  previous  to  the  last  mentioned  act  of  the 
same  session,  a  new  mode  is  prescribed  of  collecting  the  taxes 
imposed  by  the  act  of  1792,  ch.  76  ;  and,  the  several  sheriffs  are 
directed  to  collect,  "  and  to  pay  the  same  to  the  treasurers  of  the 
respective  Shores,  as  the  case  may  be."  By  virtue  of  which  law, 
those  taxes,  when  paid  to  the  treasurers  of  the  respective  Shores, 
immediately  become  a  part  of  the  general  funds  of  the  State  ;  and 
are  not  now,  as  formerly,  paid  to  the  treasurer  of  the  Western  Shore 
only,  and  by  him  kept  "  apart  from  all  other  money  to  he  applied 
toioards  the  payment  of  the  salary  oftlie  chancellor. '^^ 

These  taxes  on  proceedings  in  chancery  and  the  land  office,  of 
the  Eastern  Shore,  are,  therefore,  now  paid  to  the  treasurer  of  that 
Shore ;  who,  after  making  sundry  disbursements,  pays  the  annual 
general  balance  to  the  treasurer  of  the  Western  Shore — so  that  the 
treasurer  of  the  Western  Shore  has,  now,  no  means  of  ascertaining 
the  amount  of  the  whole  fund  which  had  been  created  by  the  act 
of  1792  ;  since  the  two  treasurers  are  as  wholly  distinct,  in  regard 
to  their  accounts,  disbursements,  and  responsibility,  as  if  they 
belonged  to  different  governments.  The  treasurer  of  the  Western 
Shore  cannot,  now,  ascertain  what  deficiency  he  should  make  up 
out  of  money  arising  from  the   sale  of  vacant  land ;  and,  conse- 


THE  CHANCELLOR'S  CASE.  667 

quently,  has  been  virtually  deprived  of  the  authority  to  pay  the 
chancellor's  salary  out  of  that  particular  fund,  as  was  prescribed  by 
the  act  of  1792.  This  special  fund,  created  by  the  act  of  1792,  for 
the  payment  of  the  chancellor's  salary,  has,  then,  been  totally 
broken  up,  abrogated  and  abolished ;  because,  the  moneys  arising 
from  the  taxes,  imposed  by  that  act,  have  been  permanently 
diverted  from  their  original  destination,  by  a  perpetual  law  which 
mingles  them  with  the  general  mass,  and  subjects  them  indiscrimi- 
nately to  the  general  demands  upon  the  treasury.  There  has  been 
no  law  passed  since  1792,  authorizing  either  of  the  treasurers  of 
the  State  to  pay  to  the  chancellor,  in  any  other  manner,  the  amount 
of  the  salary  given  him  by  that  act. 

Hence,  it  follows,  that  if  it  were  even  admitted,  as  it  cannot  be, 
that  the  act  of  1792  would  be  virtually  revived  by  the  expiration 
of  the  act  of  1798,  there  is  nothing  now  left,  of  the  act  of  1792,  on 
which  a  mere  constructive  revival  can  operate,  but  those  parts  of  it 
which  fix  the  amount  of  the  chancellor's  salary  ;  because,  the  resi- 
due of  it,  which  created  a  fund  out  of  which  the  salary  was  directed 
to  be  paid,  has  been  altered,  and  the  fund  otherwise  applied  by  sub- 
sisting perpetual  laws.  The  appropriation  to  pay,  under  the  act  of 
1792,  having  been  thus  altered  and  repealed,  the  chancellor,  it  is 
evident,  can  be  in  no  better  situation,  as  matters  now  stand,  under  the 
act  of  1792,  than  under  the  act  of  1798.  He  would  be  alike  without 
any  legislative  warrant  to  demand  payment  of  the  sum  specified  by 
either  of  those  acts  as  the  amount  of  the  chancellor's  salary. 

But,  it  may  be  said,  that  this  discretionary  power,  as  to  appro- 
priations for  the  payment  of  judicial  salaries,  virtually  gives  to  the 
legislature  a  control  over  the  whole  subject.  To  a  certain  degree, 
this  must  be  admitted.  Legislators  are  under  an  imperfect,  not  a 
perfect  obligation  to  make  appropriations  for  the  payment  of  such 
salaries  ;  or  in  other  words,  they  are  morally  and  religiously  obliged 
to  obey  the  constitution.  They  are  morally  bound  by  their  duty  to 
their  country  ;  and  they  are  religiously  bound  by  their  promissory 
oaths,  which  they  take  before  they  can  be  admitted  to  their  seats. 
But,  the  obligation,  thus  imposed  upon  them,  is  not  a  perfect  one  ; 
because,  they  cannot  be  personally  coerced  by  any  superior  power, 
as  by  a  court  of  justice,  to  comply  with  that  obligation.  Legisla- 
tors, who  violate  the  constitution,  may  incur  the  displeasure  of  the 
people  ;  they  may  feel  their  moral  dignity  somevrhat  lessened  and 
disturbed;  and  they  may  have  some  very  annoying  and  compunctious 
visitings  of  conscience.   But  the  force  of  the  imperfect  obligation,  im- 


668  THE  CHANCELLOR'S  CASE. 

posed  upon  them,  will  end  there.  The  injured  citizen  may  complain, 
but  he  can  do  no  more  than  complain  ;  he  will  be  without  redress. 

The  salary  claimed  by  the  present  chancellor  is  a  debt  due  to 
him  from  the  State.  The  law  of  1798  has  ascertained  its  amount, 
and  the  Declaration  of  Rights  has  declared  it  shall  be  secured  to 
him  ;  and  further,  that  it  shall  be  secured  to  him  during  the  continu- 
ance of  his  commission.  It  is  a  debt  due  to  him  from  the  State, 
and  continually  growing  due  to  him,  during  that  period  of  time — 
and  the  State  is  as  much  bound  to  pay  that  debt,  in  one  form  or 
other,  as  it  can  be  bound  to  pay  any  debt  whatever.  The  State 
cannot  now  be  sued  ;  nor  could  its  property,  like  that  of  a  tardy  or 
a  fraudulent  debtor,  at  any  time  be  taken  and  sold  to  pay  its  debts. 
The  legislature  have  the  strength,  the  physical  power  to  disregard 
the  constitution  ;  to  wrong  an  individual ;  to  refuse  to  appropriate 
money  to  pay  a  debt ;  to  refuse  to  make  provision  for  the  payment 
of  a  salary.  But,  to  do  so  is  contrary  to,  and  a  violation  of  their 
moral,  their  religious,  and  their  constitutional  obligation. 

Each  legislator  has,  like  every  other  citizen,  a  deep  interest  in 
the  preservation  of  the  constitution  in  all  its  perfection  and  integ- 
rity. Institutions,  that  cease  to  command  respect,  are  soon  treated 
with  contempt,  and  become  exposed  to  the  assaults  of  every  rude 
intruder — one  violation  sanctions  another;  and  every  breach, 
however  small,  weakens  the  political  edifice ;  one  constitutional 
pillar  after  another  may  be  loosened  from  its  base  until  all  are 
tumbled  into  ruins.  That  which  is  now  the  case  of  the  chancellor 
may  soon  become  the  case  of  every  judge  in  the  State.  From  one 
department  ruin  may  be  visited  upon  another,  until  all  the  divi- 
sions of  the  government  are  removed,  and  every  check  and  balance, 
intended  to  guard  and  protect  the  rights  of  persons  and  of  pro- 
perty, against  the  wayward  and  inordinate  passions  and  designs  of 
the  few,  shall  be  wholly  destroyed. 

The  House  of  Delegates  are  the  peculiar  guardians  of  the  trea- 
sury of  the  State.  They  alone  appoint  the  treasurer,  who  holds 
his  office  at  their  pleasure.  Hence  it  is  obvious,  that  any  person 
or  officer,  whom  they  may  order  their  treasurer  not  to  pay,  will  not 
be  paid ;  no  matter  who  he  may  be,  or  w^hat  may  be  the  merits  of 
his  claim.  In  such  case,  the  Delegates  need  not  resort  to  any 
expedient  or  indirect  movement  to  attain  their  object.  It  is  only 
necessary,  that  they  should  boldly  and  firmly  give  the  order: 
and,  if  their  treasurer  hesitates,  the  same  majority  who  gave  the 
order,  can  at  once  remove  him  and  appoint  a  more  subservient 


THE  CHANCELLOR'S  CASE.  669 

officer,{a:)  If  a  House  of  Delegates,  capriciously,  and  without  any  just 
cause,  ^Yere  to  refuse  to  make  the  necessary  appropriation  for  the 
payment  of  the  salary  of  the  chancellor  or  a  judge;  the  neglect,  or 
the  wrong  might  be  corrected  in  the  course  of  one  year,  or  by  the 
next  election  ;  but  if  the  Senate,  at  the  commencement  of  their  term, 
were,  in  like  manner,  to  refuse  their  assent  to  the  making,  renewing, 
or  continuing  a  provision  for  the  payment  of  a  judicial  salary ;  the 
officer  must  either  resign  or  remain  unpaid  for  five  years,  before  it 
would  be  in  the  power,  even  of  the  people,  to  correct  the  procedure. 
All  the  judges  under  the  federal  government  are  precisely  in  the 
same  predicament,  in  relation  to  Congress,  that  the  chancellor  of 
Maryland  is,  in  relation  to  the  General  Assembly  of  the  State,  under 
the  act  of  1798.  None  of  the  various  acts  of  Conoress,  which  ascer- 
tain  and  fix  the  salaries  of  the  judges  of  the  United  States,  in  the  acts 
themselves,  make  any  o/jpropriafiono/'Tno^ey  for  the  payment  of  those 
salaries.  The  appropriation,  for  that  purpose,  is  always  made  by 
separate  laws ;  and  is  uniformly  included,  as  one  of  the  distinct  items, 
in  the  annual  appropriation  acts  passed  by  Congress. (y)    Hence, 


(x)  "The  executive,  in  our  governments  (said  Mr.  Jefferson  in  March  1789,)  is 
not  the  sole,  it  is  scarcely  the  principal  object  of  my  jealousy.  The  t}Tanny  of  the 
legislatures  is  the  most  formidable  dread  at  present,  and  will  be  for  many  years.  That 
of  the  executive  will  come  in  its  turn  ;  but  it  will  be  at  a  remote  period.  I  know 
there  are  some  among  us,  who  would  now  establish  a  monarchy.  But  they  are  incon- 
siderable in  number  and  weight  of  character.  The  rising  race  are  all  republicans." — 
(2  Jeff.  Corr.  Let.  191 ;  Coop.  Just.  43S.) 

By  the  act  of  1824,  ch.  125,  the  treasurer  of  the  "Western  Shore  was  autliorized  to 
pay  over  annually  to  the  managers  of  the  Washington  monument  lotteiy,  all  the  sur- 
plus that  should  be  received  from  the  State  lotteries  over  and  above  the  net  sum  of 
twelve  thousand  dollars,  until  the  debts  then  due  should  be  paid  and  the  monument 
completed ;  provided  that  the  managers  should  relinquish  their  ri^ht  to  draw  any 
lottery  under  the  authority  previously  granted  to  them.  The  relinquishment  was 
accordingly  made  as  required.  After  which  the  propriety'  of  continuing  this  adjust- 
ment or  contract  with  tlie  managers  being  under  the  consideration  of  the  General 
x\ssembly,  and  before  they  had  come  to  any  determination  upon  the  subject,  the 
House  of  Delegates  alone,  passed  the  following  order : 

"  Ordered,  That  the  treasurer  of  the  Western  Shore  be  and  he  hereby  is  requireti 
to  withhold  pajTnent  under  the  act  of  December  session  1824,  chapter  125,  during 
the  continuance  of  the  present  session  of  Assembly." — {Jour.  House  Del.  3th  Feb- 
ruary,  1827.) 

But  perhaps  not  feeling  altogether  confident  of  the  propriety  of  this  order,  on  the 
next  day  z  joint  resolution  in  the  same  words  was  passed  and  sent  to  the  Senate  for 
tlieir  assent.  The  matter  seems  to  have  been  afterwards  adjusted,  for  nothin'^  further 
appears  to  have  been  done  in  this  way. 

(y)  Take  for  example  the  act  of  Congiess  of  the  23d  September  1789,  ch.  18, 
which,  without  any  reference  to  the  constitution  or  to  the  continuance  of  the  judicial 
salaries,  merely  declares,  after  specifying  the  amount  to  each,  that  the  allowance  to 


670  THE  CHANCELLOR'S  CASE. 

either  the  Senate  or  the  House  of  Representatives,  might,  at  once, 
stop  the  salary  of  all  the  judges,  or  of  any  one  of  them,  by  refusing 
their  assent  to  the  whole  or  any  part  of  that  annual  appropriation. 
And,  consequently,  all  or  any  of  those  judges,  might  thus,  by  the 
negative  of  one  branch,  be  deprived  of  his  salary.  The  appropria- 
tion, for  the  payment  of  the  chancellor's  salary,  under  the  act  of  1798, 
had  been  made  or  renewed  from  time  to  time  for  twenty-four  years 
previous  to  its  being  stopped  by  the  sole  negative  of  the  House  of 
Delegates,  on  the  26tli  day  of  February  last.  Is  there  any  thing 
to  prevent  that  from  being  done  by  one  branch  of  the  legislature 
of  the  Union,  which  has,  thus,  actually  been  done  by  one  branch 
of  the  General  Assembly  of  Maryland  ?  It  is  impossible  to  draw  a 
distinction  between  these  two  cases  of  the  federal  judges,  and  the 
State  chancellor.  They  are  exactly  parallel  and  strongly  illustra- 
tive of  each  other.  Both  of  them,  alike,  conclusively  show,  that 
it  is  no  less  unconstitutional  to  withhold,  or  to  diminish  a  judicial 
salary,  by  suffering  a  law  to  expire,  than  by  an  absolute  and  direct 
repeal  of  a  legislative  act.  If  the  treasurer  of  Maryland  con- 
ceives, as  it  appears  he  does,  that  the  appropriation  for  the  payment 
of  the  chancellor's  salary,  made  by  the  act  of  1798,  has  been  discon- 
tinued, or  suffered  to  expire ;  the  two  branches,  and  every  member 
of  the  General  Assembly  are  constitutionally  bound  to  revive  and 
renew  the  appropriation  for  that  purpose,  in  some  form  or  other. 

There  is,  as  we  have  seen,  nothing  to  be  found  recorded  in  the 
votes  and  proceedings  of  the  last  session,  which  show,  that  it  was 
the  understanding  and  belief  of  either  branch  of  the  Assembly, 
that  the  act  of  1792  was  a  permanent  act,  one  which  could  not  be 
constitutionally  repealed,  during  the  continuance  of  the  chan- 
cellor's commission  ;  and,  that  the  act  of  1798  was  altogether 
temporary  in  its  character,  and  might  therefore  be  suffered  to 
expire.  But,  let  it  be  conceded,  that  such  was  the  understanding 
of  the  Delegates.  If  this  position  is  correctly  understood,  it 
amounts  to  no  more  than  this  :  Where  a  salary  is  given  to  the 
chancellor  by  a  law,  which  is  not  limited  in  duration,  it  cannot 
be  constitutionally  repealed  for  the  purpose  of  diminishing  that 
salary.     If  this  be  the  position  claimed  by  the  Delegates,  every 

the  several  judges  shall  commence  from  their  respective  appointments,  and  be  paid 
at  the  treasury  quarterly  ;  and  the  act  of  the  14th  of  March  1794,  ch.  6,  which 
declares,  that  there  be  appropriated  for  the  compensations  granted  by  law  to  the  chief 
justice,  associate  judges,  district  judges,  and  attorney  general,  forty-three  thousand 
two  hundred  dollars. 


THE  CHANCELLOR'S  CASE.  671 

thing  for  which  the  chancellor  and  Senate  contend,  is  admitted. 
But  it  seems,  there  is  a  nice  distinction  between  the  repealing  of 
a  law,  and  the  suffering  of  a  law  to  expire.  What  is  it  ?  Does 
it  amount  to  any  thing  more  than  a  distinction  between  an  act  of 
commission,  and  an  act  of  omission  ?  The  law,  having  declared 
the  amount  of  the  chancellor's  salary,  the  legislature  cannot  con- 
stitutionally diminish  it  by  repealing  that  law ;  but  they  may  do 
so  by  suffering  it  to  expire  : — that  is,  the  legislature  commit  a. 
violation  of  the  constitution,  if  they  do  pass  an  act  to  diminish 
the  salary ;  but  if  they  diminish  it  by  omitting  to  pass  an  act, 
they  do  not  violate  the  constitution.  This  opinion,  then,  can 
have  no  other  foundation,  than  the  distinction  between  an  act  of 
commission  and  omission.     Let  us  examine  it. 

The  great  object  of  the  constitution  is  judicial  independency ; 
and,  therefore,  it  is  commanded  by  the  Declaration  of  Rights, 
that  the  chancellor's  salary  shall  be  secm-ed  to  him  during  the 
continuance  of  his  commission.  The  mode  of  obeying  this  com- 
mand is  a  matter  of  no  importance ;  and  therefore,  the  mode  is 
submitted  entirely  to  the  discretion  of  the  legislature.  But  any 
act,  either  of  commission  or  of  omission,  which  disobeys  this  com- 
mand, and  which  prevents  the  attainment  of  the  object  contem- 
plated, is  alike  a  violation  of  the  constitution.  Suppose  the  legis- 
lature should,  by  an  act,  without  making  any  provision  whatever 
for  payment,  fix  the  amount  of  the  salary  of  the  chancellor ;  and 
then,  by  another  act,  provide  a  fund  for  its  payment ;  and,  after- 
wards, were  to  repeal  the  latter  act,  without  making  any  other 
provision  for  payment.  It  is  presumed,  that  no  one  could  hesitate 
in  pronouncing  such  conduct  a  gross  violation  of  the  constitution. 
Then  suppose,  the  act,  making  provision  for  payment,  were  limited 
to  two  years  ;  and  the  assembly  were  to  neglect  to  continue  it,  or 
to  make  any  other  provision  for  payment ;  such  legislative  omis- 
sion, would  have  precisely  the  same  effect  as  the  act  of  commis- 
sion ;  and,  therefore,  the  violation  of  the  constitution  would  be  no 
less  palpable.  The  salary  of  the  chancellor  is  to  be  secured  to 
him  ;  that  is,  it  shall  not,  at  any  time,  on  purpose,  or  by  neglect, 
be  withheld  or  diminished,  during  the  continuance  of  his  commis- 
sion. This,  the  constitution  has  declared,  shall  not  be  directly 
and  purposely  done  by  the  General  Assembly  ;  and  surely,  what  is 
prohibited,  and,  therefore,  cannot  be  directly  done,  can  never  be 
accomplished  by  any  contrivance  or  indirect  movement ;  and  it 
would  be  hopeless  to  attempt  to  maintain,  that  what  cannot  be 


672  THE  CHANCELLOR'S  CASE. 

constitutionally  effected  by  the  whole  General  Assembly,  may 
nevertheless  be  fairly  brought  about  by  either  the  Senate,  or  the 
House  of  Delegates  alone. 

There  is  a  consistency  and  a  harmony  in  our  constitution,  which 
can,  in  no  respect,  be  disturbed  without  being  productive  of  some 
pernicious  consequences.  The  several  parts,  and  the  whole  toge- 
ther, have  been,  and  are  still  further  susceptible  of  being  amended, 
improved,  and  re-invigorated ;  but,  the  collision  of  one  part  against 
another,  has  never  failed  to  be  attended  with  the  most  serious  mis- 
chief The  breaking  of  a  single  chord  produces  the  harshest  disso- 
nance throughout.  The  Declaration  of  Rights  declares,  "  that  the 
legislative,  executive,  and  judicial  powers  of  government  ought  to 
be  for  ever  separate  and  distinct  from  each  other."  This  division 
and  separation  is  the  peculiar  characteristic  and  great  excellence  of 
our  government.  It  is  the  grand  bulwark  of  all  our  rights,  and 
every  citizen  has  the  deepest  interest  in  its  most  sacred  preserva- 
tion. Each  of  these  several  departments  should  be  kept,  and 
should  feel  it  to  be  its  highest  honour,  to  keep  strictly  within  the 
constitutional  boundaries  assigned  to  it.  The  legislature  should 
not  encroach  upon  the  judiciary,  nor  upon  the  executive  ;  nor 
should  either  of  those  departments  trench  upon  each  other,  or 
upon  the  legislative. 

Commissions  during  good  behaviour,  and  salaries  secured  dur- 
ing the  continuance  of  those  commissions,  constitute  that  strong 
well  marked  boundary  between  the  judiciary  and  the  other  two 
departments.  Thus  founded  and  sustained,  the  judges  are,  and 
can  be — and  without  it  they  cannot  be — a  firm,  efficient,  co-ordi- 
nate check  and  balance  in  the  government.  It  is  this  indepen- 
dency of  character,  that  enables  the  judiciary  to  shield  the  citizen 
against  unconstitutional  legislation  ;  and  against  unwarranted  wrong 
and  violence  from  the  wealthy  and  the  influential. 

But,  it  would  be  a  mockery  to  expect  of  judges  who  are  depen- 
dent upon  legislators  for  their  continuance  in  office,  perhaps  for 
their  bread,  a  firmness  and  independency  necessary  for  such  pur- 
poses. No  judge,  thus  dependent,  would  have  the  boldness  to 
thwart  a  House  of  Delegates  in  their  most  ill-advised  and  wanton 
sports  with  the  constitution.  The  sage  declaration  of  the  patriots 
of  1776,  "  That  all  persons  invested  with  the  legislative  or  execu- 
tive powers  of  government  are  the  trustees  of  the  public,  and  as  such 
accountable  for  their  conduct,"  would  be  smothered  or  forgotten. 
The  Senators  would  not  dare  to  consider  themselves  as  a  co-ordi- 


THE  CHANCELLOR'S  CASE.  G73 

nate  branch  of  the  General  Assembly;  as  "  trustees  of  the  public." 
They  would  learn,  with  suitable  and  becoming  modesty,  without 
opposition  or  inquiry,  to  register  the  edicts  of  the  "  immediate 
representatives  of  the  people;"  and  the  judges,  holding  their  com- 
7mssio7is  only  during  good  behaviour,  would  be  taught  to  rely  more 
on  the  extent,  and  the  power  of  their  family  connections,  and  the 
number  of  their  friends  among  "  the  immediate  representatives  of 
the  people,"  than  upon  their  temperate  habits  and  honourable 
deportment ;  upon  the  skill  and  diligence  with  Vv'hich  they  dis- 
charged their  official  duties ;  and  upon  the  constitutional  safe- 
guards with  which  they  were  surrounded. 

Legislative  assumptions  of  original  or  appellate  judicial  power 
would  be  applauded  as  commendable  efforts  to  reach  the  justice 
of  the  case  ;  poetical  imaginations  would  be  taken  for  historical 
facts  ;  and  the  most  incoherent  verbiage,  respecting  the  true  intent 
and  meaning  of  the  great  charter  of  our  rights,  would  be  contem- 
plated with  approbation,  as  eloquent  commentaries,  founded  in  the 
soundest  sense  and  the  closest  logic.  Contracts  might  be  impaired  ; 
individual  rights  might  be  legislated  away,  from  haste,  from  mere 
ignorance,  or  a  worse  cause.  And  it  would  be  in  vain  for  the  citi- 
zen to  seek,  or  to  expect  justice,  from  a  dependent,  interested, 
and  intimidated  judiciary.  The  theories  of  our  constitution  might 
remain  ;  but,  in  practice,  its  principles  would  be  destroyed.  The 
judges  of  our  republic  would  not,  as  under  the  colonial  establish- 
ment, be  reduced  to  a  subserviency  to  a  foreign  king  ;  they  would 
not  be  subjected  to  precisely  the  same  kind  of  corrupting  judicial 
dependence,  so  strongly  denounced  by  the  sages  of  the  revolution  ; 
but  in  principle,  the  subserviency  to  which  they  would  be  sub- 
jected, would  be  the  same  :  and  in  practice,  no  less  pernicious 
and  absolutely  hostile  to  the  temper  and  spirit  of  our  constitution. 
Our  government  would,  in  a  short  time,  cease  to  be  a  government 
of  divisions,  and  restrictions  of  power  ;  of  checks  and  balances ;  and, 
losing  every  other  feature,  would  become,  at  once,  a  government 
consisting  altogether  of  a  House  of  Delegates-elected  annually. 

But,  there  is  not,  nor  there  cannot  be,  any  just  foundation  for 
these  painful  forebodings,  these  gloomy  anticipations.  The  aber- 
rations of  the  day  are  not  proofs  of  the  waywardness  of  the  times  ; 
nor  is  the  conduct  of  a  house,  characteristic  of  a  branch  of  the 
General  Assembly  of  the  State.  The  people  of  Mainland  are  not 
unmindful  of  the  principles  of  their  fathers.  There  is  a  mass  of 
integrity  and  sound  sense  among  them  which  no  "  trustee  of  the 

85 


574  THE  CHANCELLOR'S  CASE. 

public"  can  elude,  or  will  dare  openly  to  defy  and  insult.  The 
people  constitute  that  august  American  tribunal,  in  the  last  resort, 
before  which  every  case  may  be  brought,  and  whose  final  determi- 
nation is  altogether  irresistible. 

This  interference  with  the  duration  of  judicial  salaries  has  another 
obvious  and  direct  tendency,  no  less  hostile  to  the  principles  of  our 
constitution.  The  appointing  power  is  lodged,  exclusively,  with  the 
governor  and  council.  But,  if  the  General  Assembly  can,  at  plea- 
sure, withhold  or  reduce  a  judicial  salary,  it  is  evident  they  may, 
in  that  manner,  come  into  direct  collision  with  the  appointing  power 
of  the  executive.  If  the  person,  appointed  to  a  judicial  office, 
happens  to  be  displeasing  to  the  legislature,  his  salary  may  be,  at 
once,  withdrawn  or  reduced  so  as  to  force  him  to  resign.  And 
what  is  most  odious,  in  this  kind  of  collision,  is,  that  this  unjustly 
excited  and  misguided  feeling  of  the  legislative  body  may  be 
aroused  by  persons  who  are  not  members  of  it ;  by  persons  who 
are  not  of  either  house ;  but,  who  have  influence  and  a  knack  at 
intrigue.  Such  malcontents  may  work  upon  the  honest  indolence 
of  members,  and  urge  them  on,  unthinkingly,  to  effect  the  ruin  of 
the  best  of  men,  and  the  most  sacred  of  institutions,  merely  to  gra- 
tify some  smuggled  and  vile  malignancy,  which  they  dare  not  have 
the  impudence  to  exhibit  openly  before  the  public. 

The  executive  alone  are  responsible  for  the  appointments  they 
make ;  and  the  legislature  have  no  fight,  and  ought  not  to  inter- 
fere in  any  w^ay  whatever.  They  have  no  right  to  look  beyond 
the  official  behaviour  of  those  in  office.  It  is  their  constitutional 
right  to  inquire  whether  a  public  officer  behaves  himself  well  or 
not ;  and,  if  he  does  not,  to  proceed  against  him.  Let  legislators 
now  put  the  question  to  their  constituents,  to  any  competent  and 
credible  witnesses.  Has  the  chancellor,  have  the  judges  discharged 
their  several  duties  as  they  ought,  as  was  required  of  them  by  the 
law  and  the  constitution  ;  have  they  behaved  themselves  well  ?  If 
they  have  not,  it  is  the  solemn  and  sacred  duty  of  legislators,  from 
which,  according  to  the  principles  of  the  constitution,  they  ought 
not  to  shrink,  to  call  the  alleged  delinquent  before  them  to  answer 
for  his  conduct;  and,  on  finding  the  charges  against  him  sustained, 
to  remove  him  from  office.  But,  beyond  this,  the  General  Assem- 
bly have  no  right  to  go.  In  all  other  respects,  the  chancellor  and 
judges  are  independent  of  legislators,  and  legislators  of  them. 

From  what  has  been  said  it  appears.  First,  That  the  House  of 
Delegates,  of  the  last  session,  assumed  the  power  to  reduce  the 


THE  CHANCELLOR'S  CASE.  675 

chancellor's  salary  at  pleasure,  which  was  opposed  by  the  Senate, 
as  far  as  it  was  in  their  power ;  on  the  ground,  that  it  could  not  be, 
in  any  manner,  constitutionally  diminished  during  the  continuance 
of  his  commission. 

Second,  That  the  provision,  requiring  the  salaries  of  the  chan- 
cellor and  judges  to  be  secured  io  them  during  the  continuance  of 
their  commissions,  was  suggested  to  the  American  people  by  the 
great  national  controversy,  which  terminated  in  their  independence, 
as  a  necessary  safeguard  of  their  rights  ;  and,  after  more  than  ten 
years  consideration,  was  carefully  inserted  in  the  Declaration  of 
Rights  of  Maryland. 

Third,  That  the  thirtieth  article  of  the  Declaration  of  Rights  is, 
in  every  particular,  clear  and  unambiguous  ;  in  all  respects  much 
more  so  than  the  corresponding  English  statute  of  the  year  1700; 
and  this  article  positively  obliges  the  legislature  to  give  a  salary  to 
the  chancellor,  and  to  secure  it  to  him  during  the  continuance  of 
his  commission,  without  diminution. 

Fourth,  That,  owing  to  the  revolutionary  war,  and  the  pecuniary 
and  fiscal  embarrassments  of  the  State,  during  the  first  nine  years 
after  the  establishment  of  the  Republic,  no  salaries,  of  any  kind, 
could  be  regularly  paid ;  and,  therefore,  no  salary  was  constitu- 
tionally secured  to  the  chancellor  during  that  time. 

Fifth,  That,  enuring  that  time,  the  General  Assembly  repeatedly 
and  solemnly  alleged  the  inability  of  the  State,  as  the  sole  and  only 
reason  why  they  did  not  secure  to  the  chancellor  a  salary  as  they 
were  required  to  do  by  the  constitution. 

Sixth,  That  the  chancellor's  salary,  from  the  November  session 
of  1785,  to  December  session  1824,  has  been  several  times  added 
to  and  increased  ;  but  never,  in  the  least,  or  in  any  way,  dimin- 
ished^ or  attempted  to  be  diminished. 

Seventh,  That  the  distinction  between  the  constitutional  salary 
of  the  chancellor,  and  the  compensation,  which  was,  for  many 
years,  given  to  him  Misjudge  of  the  land  office,  is  clear  ;  and  one, 
that  has  been  always  well  understood.  The  one  must  be,  and  is 
secured  during  the  continuance  of  his  commission  ;  but  the  other 
had  been  given  during  the  pleasure  of  the  legislature. 

Eighth,  That  the  act  of  1798,  ch.  86,  is  not  an  ordinary  act  of  legis- 
lation ;  but,  is  one  which  must  be  controlled,  and  is  continued  by  force 
and  operation  of  the  thirtieth  article  of  the  Declaration  of  Rights. 

JVuith,  That  the  distinction  between  the  amount,  the  duration, 
and  the  appropriation  for  the  payment  of  the  chancellor's  salary  is 


676  THE  CHANCELLOR'S  CASE. 

clear ;  and  one,  which  has  been  continually  acted  upon  and  is  well 
established. 

Tenth,  That  the  act  of  1798,  ch.  86,  by  referring  to  all  those 
antecedent  acts  and  laws  which  recognise  this  distinction,  betv/een 
the  amount,  the  duration,  and  the  appropriation  for  the  payment  of 
a  salary,  is  manifestly  predicated  upon  it.  And,  therefore,  it  w^as 
clearly  understood  and  intended,  that  it  w^ould  and  should  be  con- 
tinued in  full  force,  as  to  the  amount  of  the  salary,  by  operation 
of  the  Declaration  of  Rights ;  and,  that  the  appropriation  for  pay- 
ment only  would  require  to  be  continued  or  provided  for  in  the 
same,  or  in  some  other  way. 

Eleventh,  That  on  the  discontinuing  or  suffering  the  act  of  1798, 
ch.  86,  to  expire,  the  virtual  revival  of  the  act  of  1792,  ch.  76, 
would  not  follow^,  as  a  necessary  consequence,  even  according  to 
the  common  law,  much  less  according  to  the  constitution. 

Twelfth,  That  the  appropriation  or  provision  for  the  payment  of 
the  chancellor's  salary,  made  by  the  act  of  1792,  ch.  76,  having 
been  repealed  by  a  perpetual  law,  even  if  all  other  parts  of  it  were 
permitted  virtually  to  revive,  no  salary  could  be  now  paid  to  the 
chancellor  under  it. 

Thirteenth,  That  the  legislature  are  under  a  moral,  a  religious, 
and  a  constitutional  obligation  to  make  a  regular  appropriation, 
either  general  or  special,  for  the  payment  of  the  chancellor's 
salary,  as  designated  by  the  act  of  1798,  ch.  86. 

Fourteenth,  That  the  harmony  of  the  constitution  would  be 
destroyed,  by  withholding  or  diminishing  the  chancellor's  salary ; 
the  three  departments  brought  into  collision  ;  and  the  Delegates 
would  finally  become  triumphant  over  all. 

Fifteenth,  That  the  appointing  power  might  be  virtually  annihi- 
lated, by  this  mode  of  wutljholding  or  diminishing  the  salary  of  the 
chancellor,  or  a  judge. 

From  all  which,  it  clearly  follows,  that  the  present  chancellor 
was,  and  is  now  constitutionally  and  legally  entitled  to  ask, 
demand,  and  receive  of  the  State  of  Maryland,  a  salary  of  twelve 
hundred  and  seventy-five  pounds,  current  money,  during  the  con- 
tinuance of  his  commission. 

Under  this  firm  conviction,  after  the  sixteenth  day  of  May  last, 
when  the  first  quarter  of  his  salary  became  due,  after  the  end  of  the 
last  session  of  the  General  Assembly,  the  chancellor  drew  a  draft 
for  eight  hundred  and  fifty  dollars,  the  amount  thereof,  on  the 
treasurer  of  the  Western  Shore,  in  favour  of  the  cashier  of  the 


THE  CHANCELLOR'S  CASE.  677 

Farmers  Bank  of  Maryland,  in  the  same  manner  in  which  he  had 
obtained  payment  of  the  previous  quarter  of  his  salary.  This  draft 
the  treasurer  refused  to  pfiy. ;  giving  for  answer,  that  "  as  the  Gene- 
ral Assembly,  at  its  last  session,  refused  to  continue  the  law  of 
1798,  or  the  act  of  1797,  which  gave  to  the  chancellor  an  increase 
of  salary,  I  am  not  authorized  to  pay  this  order  ;  or,  on  account  of 
his  salary,  more  than  is  allowed  by  the  act  of  1792,  to  wit : — at  the 
rate  of  £9b0  per  annum.^^  From  which  it  appears,  that  the  trea- 
surer either  construed  the  law  for  himself,  or  followed  that  Vv'hich 
he  supposed  to  be  the  construction  given  to  the  law  and  the  con- 
stitution by  the  House  of  Delegates.  After  the  16th  clay  of  August 
last,  the  chancellor  drew  another  draft,  in  the  same  manner,  for  the 
payment  of  the  quarter  of  his  salary,  which  became  due  on  thqt 
day,  which  was,  in  like  manner,  rejected.  And,  after  the  16th  day 
of  November  last,  the  chancellor  had  a  third  draft  presented  to  the 
treasurer,  for  a  third  quarter  of  his  salary,  which  had  then  become 
due,  the  payment  of  which  was  refused,  in  the  same  manner,  and 
for  the  same  reasons. 

To  have  accepted  the  amount,  w^hich  the  treasurer  proposed  to 
pay,  under  the  act  of  1792,  ch.  76,  would  have  been  a  total  aban- 
donment of  the  ground  taken  by  the  Senate  ;  and  it  might  have 
been  construed  into  a  clear  admission  by  the  chancellor,  that  the 
House  of  Delegates,  or  the  legislature  could,  constitutionally, 
diminish  the  chancellor's  salary  at  their  pleasure.  Such  an  aban- 
donment he  could  not  make — and  he  felt  himself  forbidden  from 
making  any  such  admissions.  He  deemed  it  a  sacred  respect  he 
owed  to  the  Senate,  a  co-ordinate  branch  of  the  "  trustees  of  the 
public,''  not  to  abandon  the  ground  they  had  taken  in  his  behalf; 
and,  he  held  it  to  be  a  proper  regard  to  himself  and  a  solemn  duty 
he  owed  to  the  constitution,  not  to  make  any  such  admissions  ;  or 
to  suffer  any  act  of  his  to  influence  or  embarrass  the  consideration 
or  determination  of  this,  the  most  important  question,  that  has 
ever  yet  been  presented  to  the  General  Assembly  of  Maryland. 

It  is  not  in  chancery  as  at  common  law,  where  the  court's  docket 
exhibits  a  complete  list,  and  a  full  account  of  all  its  business.  A 
court  of  chancery  does  not,  like  a  court  of  law,  move  forward  all 
its  business  from  term  to  term,  from  stage  to  stage,  and  periodi- 
cally ;  it  is  continually  open  ;  always  accessible  ;  and  may  be,  at 
any  time,  engaged  in  business  ;  it  has  no  recesses,  no  resting 
places.  There  are  many  cases  in  chancery,  which,  although  soon 
brought  to  a  termination,  in  relation  to  the  immediate  object  for 
which  they  were  instituted  ;  yet,  as  to   other  purposes  may  be 


678  THE  CHANCELLOR'S  CASE. 

opened  and  reopened  ;  and,  from  the  nature  of  things,  and  to 
answer  the  purposes  of  justice,  must  be  kept  open  and  depending 
for  many  years.  The  adjustments  under  the  late  Spanish  treaty 
called  up,  and  recently  gave  rise  to  much  litigation,  in  cases  that 
had  slumbered  for  nearly  thirty  years  ;  and,  in  which  the  parties, 
or  their  survivors  had  been  dispersed  over  half  the  Union. 

The  labours  of  the  chancellor  are  not,  like  those  of  a  judge  of 
a  court  of  common  law,  spread  out  and  displayed  before  the  pub- 
lic, by  calling  in  witnesses  and.  jurymen  to  be  present  and  to  par- 
take in  them.  The  whole  weight  of  his  duties  fall  upon  himself, 
and  upon  himself  alone.  The  anomalies  and  the  intricacies  in  the 
administration  of  justice  are  poured  out  upon  him ;  and  he  is  left 
unaided  and  alone  to  ascertain  the  course  which  justice  requires  to 
be  pursued,  according  to  the  established  principles  of  equity  as 
they  arise  out  of  the  complicated  facts  of  each  case.  The  chancery 
is  the  great  property  court  of  the  State.  And  a  vast  proportion  of 
the  individual  rights  to  the  soil  of  Maryland  are  only  to  be  found  in 
that  court.  Perhaps,  it  would  not  be  hazarding  too  bold  an  asser- 
tion to  say,  that  one  half  of  all  the  titles  to  lands  in  Maryland, 
when  traced  from  the  present  holder  to  their  origin,  will  be  found 
to  have  some  one  or  other  of  the  links,  in  the  chain  of  title,  resting 
in  the  court  of  chancery. (z) 

It  would  be  foreign  to  the  constitutional  question,  now  under 
consideration  ;  and  it  would  be  invidious  to  contrast  the  duties  of 
the  chancellor  with  those  of  any  common  law  judge  in  the  State. 
But,  there  are  those,  who  mistake  the  object  of  the  act  of  November 
1809,  ch.  181,  requiring  the  number  of  days  each  judge  of  the 
several  courts  of  law,  attends  in  their  respective  courts,  to  be  cer- 
tified annually  to  the  General  Assembly ;  and,  under  that  mistake, 
they  have  taken  up  an  opinion,  that  judicial  labour  was  a  sort  of 
job  work,  the  value  of  which  might  be  estimated  by  the  number 
of  days  the  labourer  was  employed.  To  those,  it  may  be  satisfac- 
tory to  learn,  that  the  business  of  the  court  of  chancery  has  lat- 
terly very  much  increased,  and  continues  to  increase  ;  and,  that  its 
records  will  show,  that  the  present  chancellor  has,  either  in  the 
way  of  a  formal  session  of  a  court,  or  otherwise,  been  called  upon 
about  three  hundred  different  days  of  the  last  year,  to  transact 
business  wjiich  had  been  brought  before  him  from  almost  all  the 
different  counties  of  the  State. 

(s)  It  has  been  said,  that  most  of  the  estates  in  England,  once  in  thirty  years, 
pass  through  the  Court  of  Chancery.— (16  Howell's  State  Tri.  417.) 


THE  CHANCELLOR'S  CASE. 


679 


It  is  because  of  the  continual  calls  to  which  a  chancellor  must 
always  hold  himself  accessible,  and  because  of  the  nature,  and  the 
peculiarly  heavy  pressure  of  the  duties  imposed  upon  such  an  officer, 
that  the  salary  of  the  chancellor  of  England,  and  of  every  State  in 
this  Union,  has  always  been  double,  or  at  least  one-third  more  than 
that  of  any  other  judicial  officer.  And  it  is  for  the  same  reasons,  that 
the  salary  of  the  chancellor  of  Maryland,  from  the  first  settlement  of 
the  country,  up  to  this  time,  has  always  been  in  a  similar  proportion 
higher  than  that  of  any  other  judicial  officer  of  the  State. (a) 

(a)  The  following  table  presents  at  one  view  the  annual  amount  of  all  judicial 
salaries  in  Mai-yland,  from  the  year  1773,  to  the  year  1825  inclusive,  translating 
those  formerly  given  in  the  money  of  account  of  the  State  into  dollars  and  cents. 


The  Chancellor    j„^^«„f 

County  Courts. 

General  Court 

Court  of 

The  time. 

By  whom  and  how  given. 

as  such. 

asjiiflffe    Adrni- 
ol'  liiiid      rally, 
office. 

Chief     Associate 
Judge.      Judges. 

Chief 
Judge. 

Judge. 

Appeals. 

By  the  Lord  Proprielary  du- 

J 1773. 

> 

ring  pleasure,  as  Governor 
E  2666.66,  and  to  the  same 
person  as  Chancellor  in  fees. 

1866.66 



in  fees 
266.66 

Justic 
the  p 

es  of 
eace 

1866.66 

1500.00 

53333 

Votes  &  Pro.  H.  Del.  Dec.  21 

no 

pay. 

1779;  7  Mass.  His.  So.  202. 

■6  1777 

Resolution  Ilih  April,  1777 

SOO.OOj  

NoJudge 

Justic 

es  of 

«4pe 

r  day.  |    No    | 

^  1778 

Resolution  12tli  December,  1777 

2000.00 



800.00 

the  p 

eace 

same 

same 

Judges 

g  1779 

Resolution  8lh  December,  1778 

3333.33 



1200.00 

no 

pay. 

2986.66 

2500.00 

1333.33 

a 

And  by  a  Resolution  of  29th  p 

-a 

December,  1779,  as  a  com-  C 

2333.33 



1800.00 





.3749-33 



g 

pensati  >n  for  this  year          ) 

>^17S0 

Resolution  24th  December,  1779 

33333.33 



3000.00 





2400.00 

2403.00 

8900.00 

g  17S1 

Resolution  3J  January,  1781 

1600.00 



533.30 





1333.33 

1333.33 

533.33 

.2  1782 

Civil  list  act  1731  ch.  29     .    . 

2000.00 



same 

— — 



same 

same 

same 

a  1733 

Civil  list  act  1732  ch.  23     .    . 

1600.00 



same 



• 

same 

same 

same 

>  1784 

Civil  list  act  1733  ch.  31     .    . 

same 



same 





same 

same 

same 

^  1785 

Civil  list  act  1784  ch.  68     .    . 

1733.33 



666.66 





same 

same 

same 

d  1786 
a  1787 

By  1785,  cli.  27  and  71    .    .    . 

1733.33 

533.33 

666.66 





1600.00 

1333.33 

533.33 

By  1785,  ch.  27;  1786,  ch.  41 ;  ■) 

- 

2 

1737,  ch.  6;  1788,  ch.  41;  1739, 

'5   to 

ch.  49;   1790,  ch.  52;    17.11,  > 

same 

266.G6 

same 

1066.66 

«2.66 

same 

same 

same 

§ 

ch.  74;  and  1790,  ch.  33;  in 

a  day 

"  1792 

Districts  of  Counties    .    . 

=■'5? 

■S  1793 

By  1785,  ch.  27;  1790,  ch.aS;  ) 

2533.33 

S  is  .a* 

same 

same 

same 

same 

same 

■g  lo'9i3 

and  1792,  ch.  76     .    .    .    .     S 

"5  ^ 

M  1797 

By  1735,  ch.  27 ;  1792,  ch.  76;  } 

°  =*^ 

.a 

Resolution  November  1796  ^ 

2733.33 



^Zn 

1200.00 

«3.00 

1000.00 

1533.33 

same 

60 

1  1798 

and  1796,  ch.  43     ....     ) 

S  j;   5 

a  day 

By  1785,  ch.  27;  1796,  ch.  76; 
1797,  ch.  71,  50  and  79;  to 

iz,t 

a 

3.1  1 

1 

the  Chief  Judge  of  the  third  '> 
or   Baltimore    District    by 

2933.33 



lis 

1300.00 

same 

2266.66 

2000.00 

833.33 

o 

1797,  ch.  69,  81400    .... 

(S  1799 

By  1785,  ch.  27 ;  1797,  ch.  50,  } 
69  and  79 ;  and  1798,  ch.  86     > 

3400.00 

CS   bj,  >^ 

same 

same 

same 

same 

same 

2 

S  g-3 

■?  1800 

By  1797,  ch.  50  and  69 ;  1793,  ^ 

s^l 

^    to 

ch.  86 ;    17.19,  ch.  52 ;    and  ^ 

same 



3-33 

same 

«4.00 

same 

same 

1000.00 

■3  1805 

1801,  ch.  74,  s.  18  ...    .     > 

.2-5  3 

a  day 

800.00 

3  ISO6 

By  1793,  ch.  86;  1301,  ch.  55 ;  j 
and  1805,  ch.  16  and  86     .     i 

same 

1400.00 

«1400 

abol 

ished 

or  .iirffre. 
2200.00 

00  to'^o 

u. 

The  facts  exhibited  by  this  table  suggest  inany  matters  for  reflection ;  setae  of 
which  it  may  be  well  here  to  notice.  There  was  nothing  in  the  frame  of  the  pro- 
vincial government  which  made  it  incompatible  for  one  judicial  officer  to  hold  at  the 
same  time  any  other  similar  office,  or  indeed  almost  any  other  kind  of  office  ;  or 


680  THE  CHAXCELLOR'S  CASE. 

Under  a  proud  confidence,  that  his  whole  character  and  conduct, 
public  and  private,  will  bear  the  closest  and  severest  investigation, 

which  prohibited  his  taking  fees  or  perquisites  of  any  kind ;  and  it  was  in  fact  quite 
common  for  the  same  person  to  have  a  plurality  of  offices  and  to  receive  a  variety  of 
fees  and  perquisites  as  such.  The  last  provincial  governor  was  chancellor  and  also 
ex  q^'cio  chief  judge  of  the  Court  of  Appeals,  (1713,  c/i.  4,  s.6;  lT29,ch.3,)  and  conse- 
quently the  aggregate  amount  of  his  salary  as  governor,  chancellor,  and  judge  must  have 
been  at  least  $500'C,  besides  fees  and  perquisites ;  yet  at  that  time  there  was  not  half 
the  amount  of  population  and  wealth  in  Maryland,  that  there  is  at  present,  (1825.) 

The  Declaration  of  Rights  declares,  that  no  person  ought  to  hold,  at  the  same  time, 
more  than  one  ofhce  of  profit;  and  that  no. chancellor  or  judge  ought  to  hold  any 
otlier  office  civil  or  military,  or  receive  fees  or  perquisites  of  any  kind.  Conse- 
quently the  authority  of  the  chancellor  and  judges  of  the  republic  is  limited  to  a 
single  judicial  office,  and  then-  official  emolument  is  confined  strictly  to  the  salary 
allowed  by  law  to  that  single  office.  It  seems  to  have  been  deemed,  by  the  first  Gen- 
eral Assembly  of  the  Republic,  "  a  matter  of  the  highest  importance  to  keep  the  court 
of  the  last  resort  totally  distinct  from  all  inferior  jurisdictions."  (  Votes  <§•  Pro.  Sen. 
29lh  March  1777.)  But  by  the  amendment  of  the  constitution,  of  the  year  1805,  the 
principle  which  had  thus  rigidly  prohibited  the  holding  of  a  pluralitj'  of  offices  was 
departed  from  or  modified.  The  chief  judges  of  the  six  judicial  districts,  it  is  directed, 
shall  compose  the  court  of  appeals  ;  and  thus,  as  under  the  provincial  government, 
the  same  person  holds  two  distinct  judicial  offices;  that  is,  he  is  chief  judge  of  a 
district  of  county  courts,  and  also  a  judge  of  the  court  of  appeals. 

By  adverting  to  the  salaries  which  had  been  assigned  to  each  of  these  offices  down 
to  ISOl  it  will  be  seen,  that  the  salary  now  allowed  to  them,  as  thus  combined  in  the 
same  person,  is  nearly  the  same  as  the  aggi-egate  amount  which  had  been  allowed  to 
them  when  held  separately,  and  by  distinct  persons.  Thus  demonstrating  it  to  have 
been  the  intention  of  the  General  Assembly,  in  giving  a  salary  of  only  $2200,  to 
preserve  a  similar  proportion  between  the  compensation  of  the  judges  of  ihe  courts 
of  original  and  appellate  jurisdiction  ;  that  is,  estimating  about /ou;7cc7i  hundred  dol- 
lars as  a  proper  allowance  for  the  discharge  of  the  duties  of  the  former,  and  only 
eight  hundred  dollars  lor  the  performance  of  the  latter.  It  is  then  remarkable,  that 
at  all  times,  and  under  every  change  of  circumstances  in  JNIaryland,  the  compensa- 
tion allowed  to  the  judges  of  the  court  of  the  last  resort  has  been  very  small  in  com- 
paiison  with  that  which  has  been  paid  to  those  of  the  courts  of  original  jurisdiction. 
This,  it  is  evident,  has  not  been  the  result  of  prejudice  or  accident;  and  therefore, 
the  causes  of  it  deserve  to  be  inquired  into  and  considered. 

In  England  the  House  of  Lords  is  the  court  of  the  last  resort.  Its  members  receive 
no  compensation  for  the  discharge  of  their  judicial  duties  ;  and  those  of  the  judges 
in  office,  or  the  ex-judges  who  sit  there,  as  peers  of  the  realm,  receive  no  compensa- 
tion whatever  for  their  services  there.  But  the  chancellor  and  judges  of  the  courts 
of  original  jurisdiction  of  Westminster  Hall  have  very  great  salaries;  and  besides, 
are  allowed  to  receive  a  very  large  amount  of  fees  and  perquisites.  ( Smol.  Hist.  Eng. 
ch.  16.)  It  is  said,  that  in  old  times  writs  of  error  in  England  were  rare,  for  that  men 
when  judgment  was  given  against  them  by  course  of  law  were  satisfied  without  prying 
with  eagles  eyes  into  matters  of  form,  or  the  manner  of  proceeding,  or  of  the  ti-ial,  or 
insufficiency  of  the  pleadings,  &.C.,  to  the  intent  to  find  error  to  force  the  party  to  a 
new  suit,  and  himself  to  a  new  charge  and  vexation. — (Higgin's  Case,  6  Co.  46.) 

The  court  of  the  last  resort  of  the  State  of  New  York,  is,  in  some  respects,  appa- 
rently so  strikingly  analogous  to  that  of  England  as  to  have  been  looked  upon,  by 
some,  as  a  mere  adoption  of  tlie  frame  and  principle  of  the  ultimate  tribunal  of  that 
country.     How  that  may  have  been  is,  however,  unimportant  as  regards  the  matter 


THE  CHANCELLOR'S  CASE,  681 

the  chancellor  deeras  it  wholly  unnecessary  to  say  one  word  respecting 
himself.  When  he  accepted  the  office  of  chancellor  of  Maryland,  he 

now  under  consideration.  The  New  York  court  of  last  resort  is  composed  of  the  Senate 
aided  by  and  together  with  the  chancellor  or  the  judges.  The  senators  are  compen- 
sated for  their  attendance  by  an  allowance  of  so  much  for  each  day's  attendance ;  and 
the  chancellor  and  judges  are  paid  as  judges  of  the  courts  of  original  jurisdiction  ;  but 
receive  nothing  in  addition  for  the  discharge  of  their  duties  in  this  appellate  court. 

This  ultimate  tribunal  of  New  York,  if  not  the  very  best,  is  admitted  on  all  hands 
to  be  fully  equal  to  any  court  of  last  resort  in  the  Union.  Its  business  has  never 
been  suffered  to  accumulate  or  fall  unreasonably  behind  hand  ;  and  the  reports  of  its 
decisions  are  received  every  where  as  illustrations  and  guides  of  the  highest  respec- 
tability. It  was  organized  in  1776 ;  and,  on  being  reviewed,  by  the  convention, 
called  together  in  1821,  for  revising  the  constitution,  it  was  continued  and  reestab- 
lished without  a  dissenting  voice.  (Debates  New  York  Convention,  1821.)  The 
senators  bring  into  it  a  mass  of  sound  common  sense  by  which  cases  are  met  upon 
their  merits  ;  the  propensity  to  overmuch  technicality  is  checked ;  and  there  is 
besides,  found  among  the  senators  a  degree  of  legal  science  often  superior  to  that  of 
the  bench,  and  always  sufficient  to  keep  down  the  mere  esprit  du  corps  of  the  regular 
judges.  The  senators  come  from,  and  at  short  intervals  return  to  the  people  ;  and 
hence  it  has  been  truly  and  emphatically  called  "  the  court  of  the  people  ;"  and  as 
such  its  proceedings  attract  much  and  general  attention  ;  and  have  necessarily  a 
widely  extended  publicity  which  does  not  always  follow,  and  can  rarely  be  given  to 
the  proceedings  of  a  court  attended  by  none  but  lawyers,  and  whose  decisions  are 
selected  and  reported  for  their  use  only. — {Debates  N.  York  Conv.  517,  609,  611.) 

Altliough  in  cases  of  family  disputes  in  chancery,  to  save  the  feelings  of  the  par- 
ties and  with  their  express  consent,  the  matter  may  be  privately  heard  ;  {In  the  mat- 
ter of  Lord  Portsmouth,  Coop.  Rep.  106,)  yet  in  all  other  cases  the  matters  in  con- 
troversy must  be  heard  in  open  court;  for,  publicity  injudicial  proceedings  is  of  the 
very  greatest  importance  ;  "  it  is  one  of  the  best  securities  for  the  honest  exercise  of 
a  judge's  duty,  that  he  is  to  exercise  that  duty  in  public."  {Wellesleij  v.  Beaufort, 
2  Russell,  9.)  Publicity  is  also  one  of  the  best  shields  which  a  skilful  and  impartial 
judge  can  have  against  the  assaults  of  party,  of  prejudice,  or  of  intrigue.  It  is  to 
the  enlightened  and  powerful  public  opinion  to  which  the  judges  of  Westminster 
Hall  are  constantly  exposed,  and  by  which  they  are  always  held  responsible  and  pro- 
tected, that  their  great  diligence  as  well  as  their  luminous  and  impartial  judgments 
are  to  be  ascribed. — {Debates  Virg.  Con.  of  1S29,  page  734.) 

But  whatever  may  be  the  composition  or  structure  of  a  court  of  last  resort,  it  is 
important,  that  it  should  have  assigned  to  it  no  duties  but  such  as  are  properly  appel- 
late, as  regards  the  substance  of  the  case,  or  the  points  involving  the  merits  which 
have  been  controverted  and  adjudicated  upon  by  the  court  of  original  jurisdiction. 
According  to  a  well  regulated  course  of  judicial  proceeding  the  parties  to  a  contro- 
versy should  have  the  means,  and  be  allowed  an  opportunity  of  bringing  before  the 
court  of  first  resort  all  their  allegations  and  proofs  in  any  way  pertinent  to  the  sub- 
ject in  litigation.  And,  when  the  case  has  been  so  prepared  for  final  decision,  the 
judgment  should,  as  nearly  as  practicable,  be  pronounced  upon  the  merits,  or  upon 
those  points  on  which  the  parties  themselves  have  relied  as  involving  the  merits. 

To  allow  the  revising  court  to  reverse  the  judgment  of  the  tribunal  of  original 
jurisdiction,  because  of  any  mere  technical  objection  ;  would  be,  nine  times  in  ten^ 
to  put  aside  the  real  merits  in  dispute  for  the  purpose  of  correcting  a  mere  matter  of 
form  which  had  either  been  deemed  unworthy  of  attention  in  the  court  below,  or 
which  might  have  been  at  once  amended  there  had  it  been  noticed  in  time ;  or  to 

86 


682  THE  CHANCELLOR'S  CASE. 

read  in  the  statute  book,  and  in  the  Declaration  of  Rights  of  the  State, 
that  a  salary  of  twelve  hundred  and  seventy-five  pounds  per  annum  was 

allow  the  revising  court  to  reverse  the  original  Judgment  on  any  oiher  ground  of 
merit,  than  that  ^vhich  had  been  specially  taken  in  the  court  below,  would  be,  in 
effect,  to  allow  tlie  appellate  court  to  assume  original  jurisdiction  by  bringing  before 
it  a  controversy  which  in  truth,  never  existed ;  or  a  new  point  of  controversy  which, 
if  it  had  been  presented  to  the  court  below,  might  have  been  shewn  to  have  had  no 
just  foundation  whatever. 

The  sending  of  a  case  back,  for  amendment  and  further  proceedings  thereon,  almost 
always  involves  a  virtual  admission,  that  an  appeal  had  been  taken  which  ought  never  to 
have  been  allowed  ;  either  because  the  objection  should  have  been  made  and  removed 
in  the  court  below;  or  if  not  there  made,  should  have  been  treated  above  as  having 
no  just  foundation ;  or  because  the  error  was  of  such  a  technical  nature  as  not  in  any 
way  materially  to  affect  the  merits.  But  the  greatest  evils  of  an  ill  defined  power  in 
the  appellate  court  to  remand  a  case  in  equity  are  those  which  must  inevitably  arise 
from  having  the  judgment  of  that  court  sent,  without  nile  or  guide,  on  a  rambling  ex- 
cui-sion  through  the  case  in  search  of  those  loose  conjectures,  ambiguous  inferences,  or 
latent  evidences  in  relation  to  some  supposed  merits,  for  the  purpose  of  letting  in  which 
the  case  should  be  sent  back  for  alteration,  {Kempv.Pryoi^TVes.  245,)  by  which  means 
a  controversy,  all  the  facts  of  which  were  from  the  outset  fully  known  to  all  concerned, 
may  be  varied  and  vexatiously  continued  to  no  purpose  ;  or  a  false  colouring  may  be 
given  to  it  by  a  party  who  has  thus  ascertained  at  what  point  his  proofs  were  weak 
or  insufficient. 

It  is  universally  admitted  that  the  consent  of  parties  cannot  give  to  a  court  juris- 
diction of  a  case  of  which  it  has  no  cognizance ;  and  yet  it  seems  to  have  become 
quite  common  of  late  to  agree  to  the  passing  of  a  decree  pro  forma  merely  for  the 
purpose  of  appealing,  and  thus  in  effect  transferring  the  original  jurisdiction  to  the 
court  of  appeals  and  sinking  the  court  of  first  resort  into  a  mere  ministerial  agent. 

It  is  obvious  then,  that  proper  appellate  judicial  duty  must  be  much  less  compli- 
cated and  laborious  than  that  which  is  original ;  because  after  all  the  circumstances 
of  the  controversy  have  been  brought  before  the  first  court  and  the  points  in  dispute 
have  been  there  specially  designated,  discussed  and  decided  upon,  the  case  must  have 
been  considerably  reduced  in  its  compass,  and  the  question  to  be  determined  in  the 
ultimate  tribunal  must  have  been  so  fully  developed  that  there  can  be  then  no  very 
heavy  obstacles  to  remove,  nor  any  great  difficulty  to  encounter  in  coming  to  a  cor- 
rect conclusion.  Considering  these  matters,  in  this  point  of  view,  it  is  perfectly 
clear,  that  tlie  judges  of  the  court  of  last  resort  with  less,  or  certainly  with  a  no 
greater  requisite  degree  of  skill,  have  nothing  like  the  same  amount  of  judicial  duty 
to  perform  as  the  judges  of  the  courts  of  original  jurisdiction. 

It  is  evident,  that  a  court  of  ultimate  resor^constituted,  like  that  of  England  or  of 
New  York,  of  a  great  number  of  members,  the  majority  of  whom  may  not  be  law- 
yers by  profession,  would  find  it  utterly  impracticable  to  deal  with,  or  to  endure 
any  thing  like  the  distracting  complexity  of  original  jurisdiction,  or  to  exercise  any 
thing  more  than  a  simple  and  proper  appellate  authority.  But  it  has  been  found, 
that  an  appellate  tribunal  constitute'd  even  of  a  few  members,  each  of  great  legal 
ability,  may  be  crushed,  or  totally  obstructed  in  its  course  either  by  allowing  every 
suitor,  at  his  own  pleasure,  to  crowd  into  it  with  his  appeal,  or  by  casting  into  it 
complicated  controversies  to  be  there  first  dealt  with  as  by  a  court  of  original  juris- 
diction.— ( Tucker's  Letter,  2  Mun.  Rep.  intra.  17 ;  Debates  Virg.  Con.  \S29, page  760.) 

It  must  have  been  owing  to  this  comparative  view  of  the  nature  and  amount  of  the 
skill  and  labour  which  had  been  in  fact,  or  could  only  with  propriety  be  required  of 
or  assigned  to  the  judges  of  the  ultimate  court,  that  the  judicial  salaries  in  Maiyland 


THE  CHANCELLOR'S  CASE.  683 

secured  to  the  chancellor  during  tlie  continuance  of  his  commission. 
The  faith  of  the  State  was,  as  he  was  thus  led  to  believe,  publicly  and 

have,  in  this  respect,  been  always  graduated ;  estimating  the  labour  of  a  law  judo'e 
in  each  of  the  six  judicial  districts,  into  which  the  State  was  divided,  as  being  for 
some  time  more  than  equal,  and  as  being  for  some  years  past  not  far  short  of  being 
equal  to  double  the  amount  of  that  of  a  judge  of  the  court  of  last  resort.  Delay, 
vacillation,  or  obscurity  in  the  proceedings  and  adjudications  of  a  court  of  ultimate 
resort,  to  which  a  suitor  may,  without  restraint,  appeal,  cannot  fail  veiy  considerably 
to  retard  the  administration  of  justice ;  to  render  it  extremely  expensive,  and  oppressive 
to  the  poor ;  and  very  injuriously  to  disturb  its  course  in  every  inferior  branch  of  the 
judicial  department.  {Debates  N.  York  Cqnv.  1821,  p.  607.)  It  was  with  a  view  to 
prevent  these  evils,  that  the  various  statutes  of  amendment  and  jeofail  have  been  made ; 
that  the  forms  and  ceremonies  of  judicial  proceedings  have  been  adjusted,  so  as  not  on 
the  one  hand  altogether  to  disappoint  the  eagerness  of  a  plaintiff  for  an  expeditious  ter- 
mination of  his  suit,  while  on  the  other,  an  honest  defendant  might  be  secured  from 
oppression  by  allowing  him  a  reasonable  time  to  prepare  his  defence,  and  to  have  the 
merits  of  his  case  deliberately  discussed  in  the  court  of  first  resort;  and  that  so  many 
limitations  and  checks  have  been  imposed  upon  the  range  of  the  right  of  appeal. 

Considering  these  as  the  true  causes  of  greater  salaries  having  been  always  given 
to  the  judges  of  the  courts  of  original  jurisdiction ;  they  shew,  that  the  right  of  appeal 
should  be  kept  within  its  proper  range  ;  that  the  court  of  last  resort  should  be  per- 
mitted to  exercise  no  original  jurisdiction  whatever;  and  tliat  any  material  departure 
from  these  principles,  which  have  every  where,  and  at  all  times,  been  regarded  as 
fundamental,  would  sink  the  courts  of  original  jurisdiction  into  the  condition  of  mere 
preparatory  tribunals,  or  ministerial  agents  of  the  coui't  of  appeals,  thereby  depriving 
the  litigants  of  the  important  benefit  of  a  first,  full,  and  open  discussion,  with  a  succeed- 
ing careful  and  critical  revision  of  tlieir  controversy  as  contemplated  by  the  constitution, 
and  finally  turn  awry  and  subvert  tlie  whole  judicial  department  of  our  government. 

But  although  this  comparative  view  of  the  requisite  amount  of  the  skill  and  labour 
of  the  judges,  of  the  original  and  appellate  tribunals,  may  sufficiently  account  for  the 
difference,  which  has  always  been  made,  in  the  salaries  of  the  judges  of  tliose  courts ; 
yet,  considering  the  court  of  chancery  as  one  of  original  jurisdiction,  it  will  be  neces- 
sary to  advert  to  other  circumstances  to  account  for  the  difference  between  the  salaries 
of  the  chancellor  and  of  the  judges  of  the  common  law  courts  of  first  resort ;  and  even 
between  the  salaries  of  the  judges  of  whole  disb-icts  of  such  courts,  and  tliat  of  tlie 
chancellor. 

Our  code  of  laws  is,  in  many  respects,  very  peculiar  in  its  principles ;  but,  its 
great,  and  principal  peculiarity  arises  from  the  judicial  machinery  by  which  it  is 
administered. 

That  part,  called  the  common  law,  as  contradistinguished  from  equity,  is  admin- 
istered by  courts  composed  of  a  judge  and  a  jur)-.  It  is  presumed,  that  the  judge 
knows  tlie  law  ;  but,  that  the  jury  do  not;  and,  therefore,  it  is  the  province  of  the 
judge  to  expound  and  declare  the  law  to  the  jury,  wlio  are  called  upon  to  say,  by 
their  unanimous  verdict,  whether,  by  applying  the  law,  as  thus  declared,  tlie  plaintiff 
should  obtain  what  he  asks  or  not.  But  a  jury,  being  composed  of  twelve  men,  not 
lawj-ers,  gathered  from  the  people  for  the  occasion,  the  whole  matter  in  controversy 
must  be  reduced  to  a  single  point,  or  so  presented  as  to  place  it  in  their  power  to  put 
their  unanimous  verdict  into  the  form  of  a  general  affirmative  or  negative  response. 
A  learned  and  experienced  judge  might  find  no  great  difficulty  in  so  framing  his 
judgment  as  to  grant  relief,  in  every  way,  suited  to  the  most  complicated  case,  that 
could  be  presented  to  him ;  but  twelve  men,  unlearned  in  the  law,  would,  in  tlie  same 
case,  find  it  exceedingly  perplexing,  or  altogether  impracticable,  unanimously,  to 


G84  'fHE  CHANCELLOR'S  CASE. 

solemnly  pledged  to  whoever  should  be  appointed  chancellor.  May 
he  now  be  permitted,  respectfully,  to  ask — has  thsit  faith  been  kept  ? 

aoree  upon  any  adequate  complex  form  of  granting  relief;  and,  therefore,  a  jury  can- 
not, with  propriety  be  called  upon,  in  any  case,  even  although  it  should  involve  a 
complicated  title  to  property,  for  more  than  a  general  affirmative  or  negative  verdict; 
or  for  a  special  verdict,  finding  the  truth  of  the  facts,  leaving  the  conclusion  of  law 
to  be  pronounced  by  the  judge. — (3  Jeff.  Corr.  Lett.  2.) 

Hence  it  is  that  all  judicial  proceedings,  according  to  the  course  of  the  common 
law,  have  a  perpetual  tendency  to  rigid  exactness  and  precision  ;  so  as  to  be  easily 
explained  to,  and  applied  by  a  jury ;  or,  at  least,  so  as  to  enable  the  judge  to  pro- 
nounce a  formal  judgment,  as  the  general  conclusion  of  law  from  the  facts  as  found 
by  the  jurj- ;  either  in  the  form  of  a  general,  or  a  special  verdict.  And,  as  it  would 
be  attended  with  great  expense  and  inconvenience  to  keep  constantly  together  a  suf- 
ficient number  of  the  people  to  compose  juries  ;  and  to  have  witnesses  kept  long  in 
attendance  in  order  to  testify  orally  before  them  ;  without  all  which  the  administration 
of  justice,  according  to  the  course  of  the  common  law,  could  not  proceed;  the  courts 
of  common  law  have  always  been  limited  in  their  sittings  to  particular  times  or  terms. 

On  the  other  hand,  that  branch  of  our  code,  called  equity,  is  administered  by  a 
court  of  chancery,  without  the  assistance  of  a  jury,  upon  the  written  allegations  and 
proofs  laid  before  it.  And,  therefore,  although  a  court  of  chancer}',  for  the  return 
of  process  and  the  more  orderly  conducting  of  its  business,  in  other  respects  with 
convenience  to  its  suitors,  has  regular  tenns ;  yet  it  is  always  open  to  meet  and  pro- 
vide for  the  peculiar  exigencies  of  every  case,  "  for  conscience  and  equity  is  always 
ready  to  render  to  every  one  his  due."  (1  Rep.  Cha.  The  Earl  of  Oxford's  Case,  6.) 
The  high  court  of  chancery  of  Marj-land,  may  indeed,  not  only  like  that  of  Eng- 
land, be  said  to  be  always  open  in  a  sense,  though  not  always  equally  accessible, 
because  of  the  other  necessary  avocations  of  the  chancellor,  and  because  of  its  long 
vacations,  (2  Newl.  Chan.  400  ;  2  Ves.  ^  Bea.  351 ;)  but,  to  be  in  fact  always  open, 
and  in  truth  always  equally  accessible,  because  of  the  chancellor's  having  no  other 
official  duties  to  perform,  and  because  of  there  being  no  vacations  other  than  those 
intervals  between  its  regular  periodical  terms  or  sittings  for  the  return  of  process  and 
the  hearing  of  cases.  For,  seeing  the  great  importance  of  having  the  chancellor 
alwa}'s  in  place,  the  General  Assembly,  during  several  of  those  years,  that  the  judicial 
salaries  remained  insecure,  directed,  that  so  much  should  be  paid  to  the  chancellor, 
"  if  he  shall  reside  at  the  seat  of  government."'— (1782,  c.  2S ;  17S3,  c.  31 ;  17S4,  c.  68.) 

The  judgments  of  the  courts  of  common  law  are  always  drawn  up  by  their  clerks 
according  to  precise  forms  ;  and,  therefore,  it  is  a  general  rule,  that  where  the  case 
is  of  such  a  nature,  or  the  relief  sought  is  so  complex  as,  that  no  adequate  redress 
can  be  given  by  any  of  the  fixed  forms  of  common  law  judgments,  the  party  may 
obtain  relief  in  chancery,  where  the  orders  and  decrees  of  the  chancellor,  although 
regulated  by  well  settled  principles,  are  always  accommodated  to  the  anomalous  or 
peculiar  nature  of  the  cases  of  which  his  court  takes  cognizance.  And  because  of  the 
complex  or  peculiar  frame  of  a  great  proportion  of  such  orders  and  decrees  they  can 
only,  according  to  the  practice  in  Maryland,  be  drawn  up  by  the  chancellor  himself 

Looking  to  the  exact  and  reduced  form  into  which  a  case  must  necessarily  be  pre- 
sented in  order  to  obtain  a  concise  decision,  according  to  a  settled  form,  from  a  tribu- 
nal composed  of  a  judge  and  jury  on  the  one  hand  ;  and  to  the  anomalous  and  com- 
])lex  frame  of  the  cases,  and  of  the  orders  and  decrees  thereupon  in  chancery,  on  the 
other,  it  has  been  very  strongly,  if  not  conclusively,  argued,  that  the  trial  by  jury 
itself,  in  controversies  as  to  the  right  of  property,  must  be  altogether  abandoned,  or 
certainly  could  not  exist  in  its  purity  and  vigour,  without  the  helping  hand  of  a 
court  ofchancery,— (Sow^/iera  Review,  Feb.  1829,  art.  3.;  The  Federalist,  No.  S3.) 


THE  CHANCELLOR'S  CASE.  683 

The  chancellor  now  claims  the  payment  of  his  salary,  under  the 
act  of  1798,  ch.  86,  at  the  rate  of  twelve  hundred  and  seventy-five 

Junius,  in  his  letter  of  the  14th  of  November  1770  to  Lord  Mansfield,  says, 
"  Instead  of  those  certain,  positive  rules,  by  which  the  judgment  of  a  court  of  law 
should  invariably  be  determined,  you  have  fondly  introduced  your  own  unsettled 
notions  of  equity  and  substantial  justice.  Decisions  given  upon  such  principles  do 
not  alarm  the  public  so  much  as  they  ought;  because  the  consequence  and  tendency 
of  each  particular  instance  is  not  observed  or  regarded.  In  the  meantime,  the  prac- 
tice gains  ground ;  the  court  of  king's  bench  becomes  a  court  of  equitj' ;  and  the 
judge  instead  of  consulting  strictly  the  law  of  the  land  refers  only  to  the  wisdom  of 
the  court,  and  to  the  purity  of  his  own  conscience." 

Lord  Redesdale  speaking  of  the  same  judge  says,  "  Lord  Mansfield  had  on  his 
mind  prejudices  derived  from  his  familiarity  with  the  Scotch  law,  where  law  and 
equity  are  administered  in  the  same  courts,  and  where  the  distinction  between  them 
which  subsists  with  us  is  not  known,  and  there  are  many  things  in  his  decisions 
which  shew  that  his  mind  had  received  a  tinge  on  that  subject  not  quite  consistent 
with  tlie  constitution  of  England  and  Ireland  in  the  administration  of  justice.  It  is 
a  most  important  part  of  that  constitution,  that  the  jurisdictions  of  the  courts  of  law 
and  equity  should  be  kept  perfectly  distinct ;  notliing  contributes  more  to  the  due 
administration  of  justice.  And  though  they  act  in  a  great  degree  by  the  same  rules, 
yet  they  act  in  a  different  manner,  and  their  modes  of  affording  relief  are  different ; 
and  any  body  who  sees  what  passes  in  the  courts  of  justice  in  Scotland,  wiU  not 
lament  that  this  distinction  prevails.  But  Lord  Mansfield  seems  to  have  consid- 
ered, that  it  manifested  liberality  of  sentiment  to  endeavour  to  give  the  courts  of  law 
the  powers  which  are  vested  in  courts  of  equity ;  that  it  was  the  duty  of  a  good 
judge  ampliare  jurisdidionem.  This  I  think  is  rather  a  narrow  \new  of  this  subject ; 
it  is  looking  at  particular  cases  rather  than  at  the  general  principles  of  administering 
justice,  observing  small  inconveniences  and  overlooking  great  ones." — {Shannon  v. 
Bradstreet,  1  Scko.  S;  Lefr.  66 ;  Sugden's  Letters,  4.) 

As  has  been  observed  in  relation  to  tliis  matter  by  our  own  great  sage,  "  the  only 
natural  improvement  of  the  common  law,  is  through  its  homogeneous  ally,  the  chan- 
cery, in  which  new  principles  are  to  be  examined,  concocted,  and  digested.  But 
when,  by  repeated  decisions  and  modifications,  they  are  rendered  pure  and  certain, 
they  should  be  transferred  by  statute  to  the  courts  of  common  law  and  placed  within 
the  pale  of  juries." — (4  Jeff.  Corr.  let.  104.)  And  in  relation  to  those  alterations  of 
our  code,  so  frequently  made  by  the  most  cnide  and  ill  digested  scraps  of  legislative 
enactment,  he  observes,  that  "  the  instability  of  our  laws,  is  really  an  immense  evil. 
I  think  it  would  be  well  to  provide  in  our  constitutions,  that  there  shall  always  be  a 
twelvemonth  between  the  engrossing  a  bill  and  passing  it ;  that  it  should  then  be 
ofTered  to  its  passage  without  changing  a  word;  and  that  if  circumstances  should  be 
thought  to  require  a  speedier  passage,  it  should  take  two-thirds  of  botli  houses,  instead 
of  a  bare  majoritj'." — {2  Jeff.  Corr.  let.  117.) 

In  these  points  of  view  then,  a  court  of  chancery  is  not  only  a  useful,  but  an 
indispensable  part  of  our  judicial  system.  And,  when  the  proper  judicial  duties  of  a 
chancellor  are  thus  compared  with  those  of  a  judge  of  a  court  of  common  law ;  and 
especially  with  those  which  are,  alone,  properly  assignable  to  a  court  of  the  last 
resort,  it  cannot  fail  to  strike  every  one,  that  those  of  a  chancellor,  independently  of 
all  his  other  irregular  and  incidental  duties,  must  require  a  vast  deal  more  skill  and 
labour  than  those  of  a  common  law  judge  in  any  situation  whatever ;  and  that  the 
larger  amount  of  salary  which  has,  at  all  times,  been  allowed  to  the  chancellor  affords 
the  most  satisfactory  proof,  that  this  matter  has  been  always  so  distinctly  understood 
by  the  people  of  Maryland. 


686  THE  CHANCELLOR'S  CASE. 

pounds  per  annum,  for  the  past  year,  or  so  much  as  has  become 

due  and  remains  unpaid ;  with  legal  interest  on  such  portions  as 

have  been  demanded  and  withheld.   And  he  also  claims  the  benefit 

of  some  such  provision  as  the  General  Assembly  may  now  think 

proper  to  make,  for  the  regular  quarterly  payment  of  that  amount 

hereafter,  during  the  cojitmuance  of  his  commission.     "  It  is  justice 

that  establisheth  a  nation."     The  chancellor  asks  no  more  than 

justice.     His  case  is  with  you. 

THEODORICK  BLAND, 

Chancellor  of  the  State  of  Maryland. 
Annapolis,  26th  December,  1825. 

This  Memorial  w^as  presented  and  read  in  the  House  of  Dele- 
gates, on  the  third  day  after  the  commencement  of  the  session, 
and  referred  to  a  committee  ;  w4io  made  a  report  thereupon. (6) 
After  which,  the  matter  having  been  considered,  was  called  up, 
discussed,  and  finally  passed  upon  by  each  House.  Whence  it 
may  be  fairly  assumed,  that  the  following  resolutions,  recognizing 
the  chancellor's  claims,  may  be  considered  as  a  deliberate  and  final 
judgment  of  the  General  Assembly  of  Maryland  affirming,  in  sub- 
stance and  in  general  terms,  the  leading  and  material  principles  set 
forth  and  asserted  by  the  chancellor  in  his  Memorial.  Considered 
in  this  point  of  view,  this  is  a  case  of  much  and  lasting  importance 
as  regards  the  judiciary  in  general  as  well  as  in  relation  to  the 
chancellor  in  particular. 

11th  February,  1826.  By  the  General  Assembly  of  Maryland, 
Resolved,  That  the  salary  of  the  Chancellor  shall  be  three  thousand 
four  hundred  dollars  during  the  continuance  of  the  commission  of  the 
present  chancellor,  and  no  longer ;  and  after  the  expiration  of  his 
commission,  such  salary  shall  be  provided  for  the  succeeding  chan- 
cellor as  the  legislature  shall  then  think  proper  to  fix  and  establish. 

2d  March,  1826.  By  the  General  Assembly  of  Maryland,  Resolved, 
That  the  treasurer  of  the  Western  Shore  pay  unto  the  order  of  Theod- 
orick  Bland,  the  sum  of  three  thousand  four  hundred  dollars  for  his 
salary  as  chancellor  for  the  year  ending  on  the  sixteenth  day  of 
February  1826 ;  and  the  salary'  of  the  present  chancellor,  as  declared 
by  a  resolution  passed  at  this  session  of  the  General  Assembly,  shall 
be  paid  to  him  quarterly  by  the  treasurer  of  the  Western  Shore, 
during  the  continuance  of  his  commission  and  no  longer. 

(b)  Jour.  H.  Del.  28th  December,  1825,  and  24th  January,  1826. 


INDEX. 


ACCOUNT. 
On  a  proper  bill  to  account,  in  a  case 
where  there  are  mutual  dealinsfs,  after 
a  decree  to  account,  both  parties  are 
actors ;  and,  as  the  balance  is  shown, 
there  may  be  a  decree  against  either. — 
Colegate  D.  Owings'  case,  404;  More- 
ton  V.  Harrison,  499. 

ACTS  OF  ASSEMBLY. 

Where  a  mode  of  proceeding  is  prescribed 
by  an  act  of  Assembly,  it  must  be  pur- 
sued so  far  as  it  goes  ;  and  may,  if  prac- 
ticable, be  followed  out  according  to 
the  course  of  the  court  to  which  the  ap- 
plication is  made  :  but  if  it  cannot  be 
so  executed,  such  court  has  no  jurisdic- 
tion; and  if  it  cannot  be  so  executed 
by  any  other  court,  then  it  must  remain 
inoperative. — Hughes'  case,  46. 

On  a  bill  to  obtain  a  legal  title  according 
to  a  bond  of  conveyance,  the  defendant 
was  ordered  to  procure  the  passage  of 
an  act  of  Assembly  to  confirm  the  con- 
veyance.— Rowlings  V.  Carroll,  75. 

An  act  of  Assembly  cannot  be  disregarded 
or  considered  as  having  been  virtually 
repealed  because  of  long  disuse. — Snow- 
den  V.  Snowden,  555. 

The  causes  and  inconvenience  of  tempo- 
rary acts  of  Assembly. — Chancellor's 
case,  646. 

An  act  which  gives  a  judicial  salary,  re- 
mains in  force  during  the  continuance 
of  the  commission  of  the  then  chancel- 
lor and  judges,  although  the  act  itself  be 
limited  to  a  shorter  duration.  — lb.  663. 

Where  a  latter  act,  which  is  limited  in  its 
duration,  virtually  repeals  a  prior  act, 
such  prior  act  does  not  revive  after  the 
latter  act  is  spent. — lb.  6G4. 

A  constructive  revival  cannot  operate  on 
any  part  of  an  act  which  has  been 
expressly  altered. — Id.  ib. 

AFFIDAVIT. 
It  is  enough  that  an  affidavit  to  an  answer 
is  so  positive,  that,  if  false,  the  part>' 
may  be  prosecuted  for  perjury. — Coale 
V.  Chase,  137. 

AGREEMENT. 

A  agrees  to  pay  B  $6000  on  a  specified 
day,  on  B's  executing  an  assignment  to 
C,  and  delivering  it  to  A.  Held,  that 
if  A  waives  the  right  to  hav(>  the  writing 
delivered  to  himself,  or  fails  to  insist 
upon  it  as  a  condition  precedent,  he 
thereby  at  once  becomes  f  lie  debtor  of 
B.— Chase  i;.  Manhaidt.  339. 


D  agreed  to  pay  C  for  certain  lands  in 
choses  in  action,  for  the  eventual  suf- 
ficiency of  which  D  was  to  be  responsi- 
ble. Held,  he  was  to  warrant,  that  with 
due  diligence  by  C,  their  net  proceeds 
should  produce  the  whole  amount  of  the 
purchase  money. — Dorsey  y.  Campbell, 
357 ;  Hoffman  v.  Johnson,  166.  And, 
that  D  might,  witliin  a  reasonable  time, 
assign  to  C  choses  in  action  for  that 
purpose  ;  but  that  D,  by  bringing  suit, 
had  waived  the  privilege  of  making  any 
further  assignments,  358. 

The  mother  of  C.  D.  O.  promised  her  hus- 
band, a  short  time  before  his  death,  that 
she  would  give  all  her  property  to  their 
daughter  C.  D.  0.;  in  consequence  of 
which  he  made  his  will,  leaving  C.  D.  O. 
a  family  Bible  and  a  spinning-wheel  as 
a  token  of  his  afl^ection,  it  being  his 
desire  and  expectation,  that  her  mother 
would  provide  for  her,  she  having  it 
fully  in  her  power  to  do  so.  Held,  that 
the  mother  was  bound  to  give  C.  D.  O. 
an  estate  of  inheritance  in  her  property, 
to  take  effect  on  her  death. — Colegate 
D.  Owings'  case,  397,  402. 

Such  a  promise  or  agreement  is  not  within 
the  statute  of  frauds,  402. 

ALIMONY. 

Cruel  and  violent  treatment  a  sufficient 
ground  for  awaiding  to  the  wife  alimony 
according  to  the  circumstances  of  the 
husband.— Hewitt  v.  Hewitt,  101 ;  Codd. 
v.  Codd,  ib. 

The  payment  as  it  falls  due  may  be  en- 
forced on  petition  by  an  order  nisi  and 
2i  fieri  facias,  102. 

A  sum  ordered  to  be  paid  monthly  by  the 
husband  to  the  wife  pending  the  suit  for 
alimony. — Sarah  WrighVs  case,  101. 

ANSWER. 

A  defendant  may  on  motion  obtain  fur- 
ther time  to  answer. — Carroll  v.  Parran, 
125. 

The  allegations  in  the  body  of  the  answer 
should  be  positive. — Coale  v.  Chase,  137. 

The  answer  of  an  administrator  must  al- 
ways be  taken  with  a  view  to  the  reasons 
for'his  belief.— Ton?  v.  Oliver,  199. 

If  an  executor  or  administrator  answers  to 
the  extent  of  his  belief,  in  relation  to 
ficts  evidently  not  within  his  own  know- 
ledge, it  may  be  a  sufficient  ilenial  ta 
have  an  injunction  dissolved. — Coale  v. 
Chase,  137. 

It  is  enough  that  an  affidavit  to  an  answer 
is  so  positive,  that  if  fidse  the  partj'  may 


688 


INDEX. 


be  prosecuted  for  perjury,  137 ;  Gibson 
V.  Tilton,  355. 

The  answer  of  one  defendant  cannot  be 
read  in  evidence  for  or  against  an- 
other; except  in  some  particular  cases. 
McKim  V.  Thompson,  160;  Jones  v. 
Magill,  198 ;  Lingan  v.  Henderson,  267 ; 
Chase  v.  Manhardt,  336. 

A  wife  cannot  be  a  witness  for  or  against 
her  husband,  therefore  her  answer  can 
in  no  case  affect  him. — Lingan  v.  Hen- 
derson, 269. 

It  is  only  under  veiy  special  circumstances, 
that  a  defendant  can  be  allowed  to  make 
any  alteration  in  his  answer. — McKim 
V.  Thompson,  162. 

An  answer  sworn  to  before  a  justice  of  the 
peace,  in  another  State,  or  in  the  Dis- 
trict of  Columbia,  who  is  certified  to  be 
a  justice  of  the  peace  at  the  time,  is  re- 
ceived as  sufficient. —  ChapUne  v.Beaity, 
197 ;  Lingan  v.  Henderson,  240 ;  Gibson 
V.  Tilton,  352. 

One  defendant  cannot  directly  compel  his 
co-defendant  to  answer,  but  he  may,  by 
a  rule  further  proceedings,  urge  foi-ward 
the  plaintiff  to  extract  an  answer  from 
him. — Jones  v.  Magill,  198. 

If  a  defendant  pleads  and  answers  to  the 
same  matter,  nis  answer  overrules  liis 
plea. — Hannah  K.  Chase's  case,  217. 

If  a  defendant,  in  argument,  relies  upon 
the  answer  of  his  co-defendant  he  there- 
by makes  it  evidence  against  himself. — 
Chase  v.  Manhardt,  336. 

When  the  case  is  set  down  for  hearing  on 
the  bill  and  answer  alone,  all  the  facts 
set  forth  in  the  answer  must  be  taken  to 
be  true.— Estep  v.  Watkins,  48S. 

The  mode  of  taking  the  answer  of  an 
adult,  or  an  infant  defendant  in  England 
and  in  this  State. — Snowden  v.  Snow- 
den,  550. 

Exceptions  to  an  answer  being  sustained, 
the  defendant  was  ordered  to  answer  by 
a  certain  day,  or  the  bill  to  be  taken 
pro  confesso. — Mayer  v.  Tyson,  560. 

An  insufficient  answer  being  as  no  an- 
swer, the  bill  may  be  taken  pro  confesso 
as  against  the  defendant,  and  the  j)laintiff 
be  allowed  to  proceed  with  his  case,  560. 

The  answer  of  a  defendant  may,  by  con- 
sent, be  received  without  oath. — Bil- 
lingslea  v.  Gilbert,  567. 

A  defendant,  who,  in  his  answer,  insists 
upon  the  statute  of  frauds,  must  never- 
theless answer  fiilly. — Ogden  v.  Ogden, 
2S8. 

If  a  defendant  says  nothing  about  the  sta- 
tute of  frauds,  he  must  be  taken  to  have 
renounced  the  benefit  of  it,  28S. 

APPEAL. 

It  is  a  constitutional  right  of  the  citizen 
to  have  his  case  at  law,  or  in  equity 
reviewed  b'y  a  court  of  error. — Ring- 
gold's case,  7 — 12. 


A  writ  of  error  was,  at  common  law,  de- 
mandable  of  right  in  all  civil  cases ; 
and  the  proceedings  in  the  court  below 
were  stayed  by  a  writ  of  supersedeas,  7. 

The  range  of  a  writ  of  error  limited  to 
certain  errors  in  fact,  or  to  errors  in  law 
apparent  upon  the  record :  and  could  be 
brought  only  upon  a  final  judgment, 
not  rendered  by  default,  or  by  consent, 
or  where  the  matter  rested  in  the  mere 
discretion  of  the  court,  8. 

Regulations  to  prevent  the  abuse  of  the 
right  of  appeal  at  common  law,  9. 

The  right  of  appeal  in  equity  is  limited  to 
final  decrees  or  to  orders  involving  the 
merits ;  it  does  not  extend  to  such 
orders  as  are  merely  interlocutory  or  to 
decrees  by  consent  or  default,  12  ;  Slye 
v.  Llewellen,  IS  ;  McKim  v.  Thomp- 
son, 270. 

On  an  appeal  from  chancery  no  new  or 
different  point  can  be  made  in  the  court 
of  appeals. — Ringgold's  case,  14,  21. 

The  staying  of  proceedings  in  equity  on 
an  appeal  is  a  matter  regulated  in  a 
great  degree  by,  and  is  very  much 
within  the  discretion  of  the  court  of 
chancery,  15. 

No  appeal  allowed  in  the  inferior  federal 
courts  but  from  a  final  decree,  16. 

The  right  of  appeal  expressly  given,  and 
confined  to  decretal  orders,  that  is,  to 
such  orders  only  from  which  an  appeal 
formerly  lay,  17  ;  McKim  v.  Thomp- 
son, 270. 

The  penalty  of  the  appeal  bond  to  be  in 
double  the  sum  decreed  to  be  paid,  or 
the  value  of  the  perishable  subject  in  con- 
troversy. How  adjusted  when  the  value 
is  uncertain,  23 ;  McKim  v.  Thomp- 
son, 272. 

The  appeal  bond  approved  by,  not  ac- 
knowledged before  the  chancellor;  but 
if  it  does  not  cover  the  amount  and  con- 
form to  the  decree  or  order,  it  is  no  su- 
persedeas.— Ringgold's  case,  24. 

An  appeal  bond  may  be  approved  cither 
on  the  chancellor's  own  knowledge  of 
the  sufficiency  of  the  obligors,  or  on  the 
certificate  to  that  effect  of  a  judge,  a 
justice  of  the  peace,  or  a  solicitor,  25. 

A  defendant  against  whom  the  bill  had 
been  taken  pro  confesso  not  allowed  to 
come  in  for  the  purpose  of  taking  an 
appeal. — Hoye  v.  Penn,  35. 

Where  no  apjieal  would  lie  the  legislature 
refused  to  pass  a  special  law  authorizing 
an  appeal. — McKim  v.  Thomp.son,  169. 

It  was  said  by  the  Senate  to  have  been 
admitted  on  all  hands,  that  there  could 
be  no  appeal  from  an  interlocutory  order 
directing  a  defendant  to  bring  money 
into  court,  169. 

Held  by  the  chancellor,  that  an  appeal 
would  not  lie  from  an  interlocutory  order 
to  bring  money  into  court,  172. 

The  execution  of  a  decree  will  not   be 


1 


INDEX. 


689 


stayed  if  no  bond  be  given. — Bryson  v. 
Petty,  183. 

No  appeal  lies  from  a  judgment  in  the 
land  office  in  a  caveat  case. — Cunning- 
ham V.  Browning,  320. 

The  manner  and  course  of  appeal  from 
the  judge  of  the  land  office  of  tlie  East- 
ern Shore  to  the  chancellor. —  Willing 
V.  Wright,  321 ;  Hopper  v.  Cokston, 
322. 

There  is  no  saving  in  the  act  limiting  ap- 
peals in  favour  of  persons  non  compos 
mentis. — Colegate  D.  Owinijs'  case,  408. 

The  cases  in  which  an  appeal  was  allow- 
ed, and  the  mode  of  prosecuting  such 
appeals  from  the  colonial  courts  to  the 
king  in  council. — The  Chancellor's  case, 
60S,  note. 

The  difference  between  the  powers  and 
jurisdiction  of  original  and  appellate 
courts  considered. 

ATTACHMENT. 

A  foreign  attachment,  or  some  equivalent 
process,  has  been  introduced  into  all 
codes. — Chase  v.  Manhardt,  342. 

The  only  object  of  an  attachment  is  to 
enable  a  creditor  to  obtain  satisfaction 
from  property  here  belonging  to  his 
absent  or  absconding  debtor,  344. 

The  garnishee  may  make  defence  for  him- 
self alone  or  for  the  defendant ;  but  if  he 
does  eitlfcr,  or  if  he  makes  no  defence 
and  fails  to  bring  the  money  into  court 
he  must  pay  interest,  344. 

The  plaintiff  may  have  only  a  part  of  the 
attjiched  debt  condemned,  346. 

ATTORNEY. 

Money  may  upon  the  production  of  proper 
vouchers  be  paid  out  of  court  to  the 
attorney  in  fact  of  the  part)'. — Hoye  v. 
Penn,  40. 

AUDITOR. 

The  nature  of  an  auditor's  duties  ;  he  is  a 
ministerial  officer  who  cannot  constitu- 
tionally be  clothed  with  any  of  the  ju- 
dicial power  of  the  chancellor. — Dorsey 
V.  Hammond,  464,  469,  471. 

The  legal  fees  of  the  auditor  are  a  pari  of 
the  costs  and  may  be  recovered  as  such, 
467. 

Where  some  of  the  proofs  have  been  ob- 
jected to,  such  objections  must  be  dis- 
posed of  before  the  case  can  be  sent  by 
the  court  to  the  auditor  with  diiections 
to  state  an  account  from  the  pleadings 
and  proofs  in  the  case. — Strike's  case, 
96. 

The  form  of  a  commission  to  auditors  lo 
state  an  account  and  report. —  Clapham 
V.  Thompson,  124  ;  Dorsey  v.  Bulany, 
4G5. 

Three  persons  appointed.  afTer  the  act  of 
1785,  ch.  72,  as  special  auditors. — Bry- 
son V.  Betty,  1S2. 

87 


AWARD? 

A  case  referred  by  consent  to  arbitration, 
an  award  returned,  and  a  decree  passed 
thereupon. — McKim  v.  Thompson,  175. 

By  referring  a  case  to  arbitration  the  court 
divests  itself  of  its  judicial  power. — 
Dorsey  v.  Hammond,  469. 

There  is  no  legislative  enactment  relative 
to  the  reference  of  suits  depending  in 
chancery  to  aibitration. — Phillips  v. 
Shipley,  516. 

The  court  may  with  the  consent  of  par- 
ties refer  the  case  to  arbitration  and  en- 
force the  award,  517. 

An  award  may  be  set  aside  on  good  cause 
shown,  517. 

A  party  cannot  revoke  a  reference  with- 
out tlie  sanction  of  the  court,  517. 

BILL. 

The  nature  of  a  supplemental  bill. — Burcli 
V.  Scott,  121. 

A  plaintiii'can  only  recover  on  tlie  strength 
of  his  own  title  as  shewn  by  his  bill, 
which  as  to  that  can  be  sustained  by  no 
exb'aneous  matter;  but  to  explain  an 
ambiguity,  resort  may  be  had  to  the  in- 
terrogating part  or  to  the  prayers  — 
Lingan  v.  Henderson,  249 — 255. 

The  special  praj'er  for  relief  must  be  such 
as  tne  case  set  out  in  bill  will  warrant 
and  the  law  authorize,  if  legal  and  not 
covered  by  tlie  bill  it  must  be  amend- 
ed, 250. 

Under  the  general  prayer,  any  relief  war- 
ranted by  the  case  as  set  forth  in  the 
bill  may  be  granted,  though  not  orally 
asked  for,  251. 

The  plaintiff  may  by  his  bill  state  his 
ca-'e  in  the  alternative,  so  that  each  be 
a  case  of  equity  juristliction ;  and  so 
that  he  thereby  evades  no  rule  for  the 
protection  of  suitors,  252. 

Although  the  bill  be  informal,  yet,  if  not 
objected  to,  it  is  enough  if  it  be  shewn 
at  the  hearing  to  be  substantially  suffi- 
cient, 271. 

Where  the  plaintiff  by  his  bill  offers  to 
perform  his  part  of  the  contract,  and 
the  answer  admits  or  sets  out  an  agree- 
ment which  is  proved,  there  may  be  a 
decree  against  each  without  a  cros.^ 
bill. — Dorsey  v.  Canijjbell,  359  ;  Wat- 
hins  v.  Wulldn-s,  359 ;  Long  v.  Gorsudi, 
361 ;  Etchison  v.  Dorsey,  536. 

The  case,  as  stated  in  the  bill,  must  ap- 
pear- at  the  hearing  to  be  of  such  a 
character  as  belongs  to  the  jurisdiction 
of  a  court  of  chancery. — Estep  v.  Wat- 
kins,  489  ;    Iglehart  v.  Armiger,  528. 

Although  on  a  bill  for  specific  perform- 
ance there  may  be  a  decree  as  well  in 
favour  of  the  defendant  as  of  the  plain- 
tiff, yet  if  the  parties  sutiinr  it  to  be 
passed  in  favour  of  the  plaintiff  alone, 
the  defendant  can  only  be  relieved  bv  a 
crocs  bill. — Etcliicon  i-.  Dcisey,  5S6. 


690 


INDEX. 


•BOND. 

The  assignee  of  a  bond  takes  it  subject  to 
all  equity  with  or  without  notice. — 
Estep  V.  AVatkins,  490. 

An  assignment  of  a  bond,  given  to  secure 
the  payment  of  the  purchase  money, 
does  not  carry  with  it  the  vendor's  equi- 
table lien. — iglehart  v.  Armiger,  523. 

CAVEAT. 

The  mode  of  proceeding  by  caveat  to  pre- 
vent the  emanation  of  a  patent  for  land 
in  Maryland  similar  to  that  of  Eng- 
land.— Cunningham  i'.  Browning,  301, 
322. 

On  hearing  a  caveat  the  chancellor  sits  as 
a  court  of- common  law,  304. 

A  caveat  is  a  petition  or  suggestion  that 
the  great  seal  should  not  be  put  to  a 
patent  grant  as  prayed,  304. 

Proceedings  in  the  land  office  other  than 
those  under  a  caveat,  314. 

The  form  and  course  of  proceeding  on  a 
caveat  before  the  chancellor  of  Mary- 
land, 313,  319,320. 

The  grounds  upon  which  a  caveat  maybe 
entered,  316  ;  Ridgely  v.  Johnson,  316  ; 
Aisquilh  v.  GocZnian,  317  ;  Hammond  v. 
Godman,  318. 

Instances  of  caveat  other  than  that  to  pre- 
vent the  emanation  of  a  patent  for  land. 
— Cunningham  v.  Browning,  324. 

If  the  cause  of  caveat  be  doubtful  it  is  the 
regular  course  to  overrule  it,  and  let  a 
patent  issue  so  as  to  give  the  parties  an 
opportunity  of  having  the  matter  de- 
termined by  a  formal  proceeding  at  law 
or  in  equity. — Ridgely  v.  Johnson,  316. 

COXSTITUTION. 

An  affidavit  made  in  another  State  to  an 
answer  to  a  bill  in  this  court  is  not  a 
judicial  proceeding  of  another  State 
within  ihe  meaning  of  the  constitution 
of  the  United  States. — Gibson  v.  Til- 
ton,  352. 

The  facility  with  which  ths  constitution 
may  be  amended  gives  to  tlie  General 
Assembly  an  almost  unlimited  power. — 
Chancellor's  case,  605. 

Under  the  colonial  constitution  the  judi- 
cial department  badly  organized,  607. 

The  history  of  judicial  independency  in 
England  and  in  this  country,  607,  615. 

A  consideration  of  the  article  of  the  De- 
claration of  Rights  relative  to  judicial 
independency,  618. 

The  mode  of  appointing  and  constituting 
a  chancellor,  623. 

The  organization  of  the  judicial  depart- 
ment after  the  formation  of  the  consti- 
tution, 628. 

Tlie  causes  which  prevented  the  legisla- 
ture from  securing  to  the  chancellor 
and  judges  their  salaries  immediately 
after  the  constitution  went  into  opera- 
tion, 645. 


It  is  in  the  power  of  the  House  of  Dele- 
gates alone  to  prevent  the  payment  of 
any  debt  due  from  the  State,  667. 

CONVERSION. 

Real  or  personal  property  taken  and  sold 
under  a  Jwri  facias  is  thereby  con- 
verted into  money ;  and  the  realty  is 
thus  converted  into  personalty. — Jones 
V.  Jones,  430. 

Real  estate  may  be  converted  into  per- 
sonalty at  law  by  a  sale  under  the  act 
to  direct  descents,  453,  460. 

In  equity  the  mode  in  which  the  judicial 
proceeding  effects  the  conversion  is  dif- 
ferent, 454. 

Although  the  sale  of  a  real  estate  to  effect 
a  division  converts  it  into  personalty, 
yet  that  should  not  prejudice  the  rights 
of  any  one,  much  less  those  of  a  feme 
covert,  455  ;    Wells  v.  Roloson,  456. 

Can  real  estate  be  constitutionally  con- 
verted into  personalty  to  the  prejudice 
of  any  one  without  his  consent  ?  457. 

COSTS. 

Postage,  notarial  seals,  &c.  cannot  be  tax- 
ed as  costs. — McMechen  v.  Story,  186. 

On  the  bill's  being  dismissed  by  the  plain- 
tiff, the  costs  on  being  taxed  by  the 
register  may  be  ordered  to  be  paid,  or 
cause  shewn. — Diffenderffer  v.  Hillen, 
191. 

On  a  bill  for  dower,  if  the  heir  throws  no 
difficulty  in  the  way,  the  widow  has  no 
costs. — ^H.  K.  Chase's  case,  231. 

There  may  be  a  revivor  of  a  decree  for 
costs. — C.  D.  Owings'  case,  409. 

In  partition  the  costs  are  borne  equally  or 
in  proportion  to  the  shares  of  each. — 
Hughes'  case,  50  ;    Corse  v.  Polk,  234. 

The  auditor's  fees  are  a  part  of  the  costs, 
and  may  be  recovered  as  such. — Dorsey 
V.  Hammond,  467. 

The  origin,  nature,  and  extent  of  the  rule 
which  may  be  laid  on  a  plaintiff  to  give 
security  lor  costs. — Mayer  v.  Tyson, 
561. 

COURT  OF  CHANCERY. 

This  court  is  in  its  institution  and  forms 
of  procedure  absolutely  civil ;  yet  if  re- 
lief be  asked  on  the  ground  of  fraud 
against  an  instrument,  it  may  be  shown 
to  be  a  forgery. — Fornshill  v.  Murray, 
484. 

The  court  of  chancery  of  Maryland  de- 
rived from  and  similar  to  that  of  Eng- 
land.— Cunninghams.  Browning,  301; 
Chancellor's  case,  648. 

This  is  not  a  term  court  in  the  sense  of 
the  common  law,  although  it  has  its 
regular  terms  and  sittings. — Burch  v. 
Scott,  126;  Chancellor's  case,  678. 

The  difference  between  the  duties  of 
courts  of  common  law  and  courts  of 
equity. — Chancellor's  case,  ib. 


INDEX. 


691 


The  peculiar  and  complex  nature  of  the 

duties  of  a  chancellor,  678. 
This   court  cannot  order  money  in  the 

hands  of  a  sheriff  or  officer  ol'  another 

court  to  be  brought  into  this  court. — 

Jones  V.  Jones,  401. 

CREDITOR'S  SUIT. 

Under  a  bill  against  the  heirs  of  a  mort- 
gagor, or  for  the  sale  of  a  deccjised's 
real  estate  to  effect  a  division,  the  cre- 
ditors of  the  ancestor  may  come  in 
against  such  realtj'  on  the  ground  of  the 
insufficiency  of  the  personalty. — Lati- 
mer V.  Hanson,  52  ;  O'Brien  v.  Bennet, 
86;  Fenwick  v.  Laughlin,  475;  Spur- 
rier V.  Spurrier,  475. 

Where  a  decree  for  a  sale  expressly  or 
tacitly  affirms  the  validity  of  the  plain- 
tiff's claim,  the  allowance  of  interest 
upon  it  is  a  subject  of  further  direc- 
tions.— Strike's  case,  70. 

It  is  most  usual  in  the  decree  for  a  sale 
itself  to  directthetrustee  to  give  notice 
to  creditors  to  bring  in  their  claims, 
every  thing  in  relation  to  which  is  the 
subject  of  further  directions,  71. 

It  is  not  indispensably  necessary  that 
the  bill  should  state,  that  the  plaintiff' 
sues  as  well  for  himself  as  others,  it  is 
sufficient  that  such  appears  to  be  the 
object  of  the  suit,  84. 

A  creditor  may  be  let  in  by  petition  either 
before  or  after  the  decree,  but  the  most 
usual  way  is  for  creditors  to  come  in  by 
filing  the  vouchers  of  their  claims,  85. 

If  a  creditor  comes  in  after  a  distribution 
has  been  awarded  by  the  auditor,  he 
must  pay  the  costs  of  the  necessary 
reaudit ;  but  he  can't  be  let  in  after  a 
final  account  has  been  ratified,  86; 
Williamson  v.  Wilson,  441 ;  Dorsey  v. 
Hammond,  46S. 

After  the  claim  of  a  creditor  has  been 
contested  upon  hearing,  the  heir  cannot 
plead  or  rely  on  the  statute  of  limita- 
tions in  bar  of  it. — McMechen  v.  Chase, 
85. 

The  creditors  may  be  called  in  before  a 
decree  so  as  to  ascertain  what  amount 
must  be  raised  by  a  sale. —  Carrie  v. 
Clarke,  85. 

Where  an  executor  had  paid  away  all  the 
personalty  and  had  nothing  to  answer 
pending  suits  against  him,  he  was  per- 
mitted to  have  the  creditors  called  in  to 
partake  of  a  surplus  of  a  mortgaged 
estate  in  a  suit  instituted  by  him  and 
others  as  representatives  of  the  de- 
ceased.—  O'Brian  v.  Bcnnct,  S6. 

Claims  in  a  creditor's  suit  may  be  paid  if 
authenticated  in  tlic  same  manner  as  re- 
quired in  the  orphans  court. — Strike's 
case,  88  ;  Dorsey  i\  Hammond,  470. 

Creditors'  suits  founded  on  insolvency  are 
governed  by  the  same  rules  as  those 
against  the  representatives  of  a  deceased 


debtor — the  schedule  evidence  ;  but  if 
any  descrepancy,  then  full  proof  may 
be  required.—  Strike's  case,  SO. 

If  the  statute  of  limitations  be  not  in  some 
form  specially  relied  on  against  a  claim 
it  cannot  be  taken  advantage  of,  90, 

The  statute  of  limitations  in  bar  of  a  claim 
brought  in  under  the  decree,  may  be 
relied  on  by  any  one  of  the  original 
parties  or  by  a  co-creditor,  93. 

Where  it  appears  by  the  voucher,  that  the 
deceased  was  surety  with  others,  the 
creditor  must  also  shew  that  the  princi- 
pal and  co-security  are  insolvent. — 
Edinondson  v.  Frazier,  92  ;  Dorsey  v. 
Hammond,  472. 

What  may  be  deemed  sufficient  evidence 
of  the  insolvency  of  the  principal  or 
co-security. — Spurrier  v.  Sjntrrier,  477. 

The  mere  fiUng  of  the  schedule  of  an  in- 
solvent cannot  be  treated  as  a  coming 
in  of  all  the  creditors  therein  named. — 
Strike's  case,  96. 

Where  a  testator  devises  a  portion  of  his 
real  and  personal  estate  subject  to  the 
payment  of  a  particular  debt,  which  the 
devisee  taking  under  the  will,  fails  to 
pay,  the  executof  of  the  devisor  may 
compel  the  devisee  to  pay  in  order  to 
save  tlie  personalty  of  the  devisor. — 
Pue  V.  Dorsey,  139. 

If,  in  such  case,  the  devisee  is  dead  leav- 
ing an  infant  heir,  and  his  personal 
estate  has  been  exhausted,  the  court  will 
by  decree  appoint  a  trustee  to  make 
sale  of  the  realty  so  charged,  138. 

A  creditor  having  an  equitable  lien  can- 
not by  the  usual  notice  be  compelled  to 
come  in  under  the  decree,  but  if  he 
does  come  in  then  the  purchaser  will 
take  clear  of  his  claim. — Millar  v. 
Baker,  148. 

The  decree  for  a  sale  being  founded  on 
the  fact  of  the  insufficiency  of  the  per- 
sonal estate  establishes  that  point,  so 
that  the  administrator's  accounts  cannot 
be  impeached  for  the  purpose  of  turn^ 
ing  a  creditor  over  against  the  person- 
alh\ — Mackubin  v.  Brown,  414,  415. 

If  the  creditors  were  infants  they  may  be 
let  in  on  applying  soon  after  Wiey  attain 
fiill  age,  even  although  notice  has  been 
given  to  creditors  and  a  final  distribu- 
tion has  been  made,  415. 

A  suit  brought  by  one  partner  against  the 
other  to  prevent  a  misapplication  of  the 

Cartiiership  effects,  alleging  the  firm  to 
e  insolvent ;  on  that  allegation  being  ad- 
mitted or  proved,  the  suit  must  thence- 
forth be  treated  as  a  creditors"  suit. — 
Williamson  v.  Wilson,  430. 

A  suit  by  a  creditor  against  trustees  to 
whom  the  debtor  had  conveyed  his  pro- 
perty for  the  benefit  of  his  creditors, 
treated  as  a  creditors' suit. — Bamaby  v. 
Hollinssworth ,  431 . 

Creditors  coming  in  may  be  ordered  to 


692 


INDEX. 


answer  interrogatories  on  oath. — Wil- 
liamson V.  Wilson,  433. 

A  ci'editor  coming  in  under  the  decree 
takes  the  position  of  a  plaintifti  434. 

In  a  creditor's  suit,  testimony  in  support 
of  a  claim  must  be  taken  in  such  a 
manner  as  to  prevent  a  cross  examina- 
tion, and  insure  a  correct  report  of  tlie 
proof  to  the  court,  434. 

Before  a  distribution  can  be  made  the 
creditors  must  be  noticed  and  called 
in,  440. 

After  which  notification,  unless  some  dif- 
ficulty occurs  requiring  previous  direc- 
tions, the  auditor  states  a  fust  account 
as  of  course  informing  the  court  of  the 
objections,  if  any,  to  each  claim  as  they 
appear  upon  the  face  of  the  proceed- 
ings, 440  ;  Dorsey  v.  Hammond,  470. 

The  decree  for  a  sale  so  far  as  it  assumes 
the  validity  of  the  originally  suing  cre- 
ditor's claim  is  conclusive. — Stiike's 
case,  68  ;  Williamson  v.  Wilson,  441. 

Creditors  may  be  allowed  time  to  take 
testimony  in  support  of  their  claims ; 
but  if  it  "be  not  taken  within  a  specified 
or  a  reasonable  time,  a  final  audit  may 
be  directed  excluding  all  claims  not 
then  sufiiciently  authenticated,  441. 

Mortgagees  and  judgment  creditors  may 
be  let  in,  and  must  be  allowed  their 
priorities. — Jones  v.  Jones,  4-52. 

The  surplus  of  the  sale  of  the  realty  in  a 
creditor's  suit  considered  as  a  part  of  the 
real  assets  which  must  be  returned  to 
the  heirs,  452. 

No  part  of  the  personal  estate  of  a  de- 
ceased debtor  can  be  applied  in  payment 
of  his  debts  without  raaldng  his  execu- 
tor or  administrator  a  party  to  the 
suit,  460. 

All  the  costs  and  expenses  are  f^rst  de- 
ducted from  the  proceeds  of  sale,  and 
then  the  balance  is  distributed,  by  which 
means  each  creditor  is  made  to  contri- 
bute to  the  expense  of  the  suit. — Dor- 
sey V.  Hammond,  463. 

Each  creditor  is  entitled  to  a  proportion 
of  the  interest  accruing  on  the  purchase 
money,  according  to  the  sum  stated  by 
the  auditor  to  be  then  due  him. — Low 
V.  Conner,  468. 

The  proceeds  of  the  sale  of  the  real  assets 
are  to  be  distributed  in  the  same  order 
as  the  personal  assets. — Dorsey  v.  Ham- 
mond, 470. 

A  judgment  against  the  executor  or  ad- 
ministi-ator  is  no  evidence  against  the 
heir,  470.  ^-^ 

If  full  proof  of  a  claim  be  required,  it 
must  be  established  as  an  issue  joined 
before  ajury,  471. 

Where  the  proceeds  of  sale  are  more  than 
sufficient  to  satisfy  all,  tiie  auditor's  re- 
port, as  to  the  undisputed  claims,  may 
be  at  once  affirmed  before  the  commis- 
sions and  costs  have  been  allowed,  or 


the   suspended  claims  have  been  dis- 
posed of. — Spurrier  v.  Spurrier,  476. 
The  chancellor  cannot  direct  the  payment 
or  discount  of  any  claim  before  the  sale 
has  been  ratified,  475. 

CHOP. 

On  a  bill  for  specific  performance,  the  de- 
fendant being  unable  to  make  a  valid 
title  the  plaintitf  was  directed  to  deliver 
possession,  reserving  to  him  the  liberty 
to  finish  his  crop  of  all  kinds  and  to  re- 
move his  crop  and  cattle. — Rawlings  v. 
Carroll,  76. 

Possession  will  not  be  delivered  under  the 
decree  itself  to  a  part}',  or  to  a  purchas- 
er under  it,  where  it  would  be  attended 
with  the  loss  of  the  then  growing  crop. 
Dorsey  v.  Campbell,  365 ;  Chapline  v. 
Chapiine,  364  ;   Wright  v.  Wright,  365. 

Under  a  decree  for  a  sale  in  a  creditors 
suit,  the  then  growing  crop  should  not 
be  sold. —  Taylor  v.  Colegate,  3G5. 

DEBTOR  &  CREDITOR. 

Where  two  or  more  sue  as  joint  creditors, 
the  proportion  due  to  each  may  be  ad- 
justed alter  the  sale  has  been  made  and 
the  proceeds  brought  in. — Hoye  v.  Penn, 
34. 

The  surplus  of  the  proceeds  of  a  sale  may 
be  awarded  to  the  representatives  of  the 
debtor  in  proportion  to  their  respective 
interests,  38. 

Where  the  property  of  a  debtor  has  been 
sold  under  a  decree  for  an  amount  equal 
to  the  \vhole  debt,  the  debtor  is  dis- 
charged, 43. 

Where  there  are  two  debtors,  and  the  pro- 
perty of  each  has  been  sold  for  an 
amount  equal  to  the  proportion  due 
from  each,  leaving  a  surplus  to  each,  as 
to  such  surplus  they  are  to  be  regarded 
as  creditors  against  the  fund  ;  and  no 
subsequent  depreciation  or  loss  of  the 
fund  taken  from  one  can  be  made  up 
out  of  the  surplus  of  the  other,  43. 

A  creditor  cannot  be  permitted  to  split  up 
his  claim  and  bring  a  separate  suit  for 
each  part ;  or  after  a  decree  to  add  in  any 
way  to  its  amount. — Strike's  case,  95. 

A  debt  will  not  be  allowed  to  carry  inter- 
est during  the  time  the  debtor  has  been 
restrained  from  paying. —  Chase  v.  Man- 
hardt,  343. 

A  debtor  on  being  sued  may,  in  all  cases, 
have  leave  to  bring  the  debt  into  court 
so  as  to  stop  interest  and  costs,  343. 

DECREE. 

Where  two  or  more  are  equally  and  jointly 
liable,  the  property  of  each  may  be 
directed  to  be  sold  in  the  first  instance, 
so  as  to  place  the  burthen  upon  each 
equally  or  in  due  proportion. — Hoye  v. 
Penn,  33,  34. 

A  decree  which  declares  certain  convey- 


INDEX. 


693 


ances  to  be  null  and  void  as  against  the 
plaintiJf,  and  directs  the  property  to  be 
sold  and  the  proceeds  brought  in  de- 
claring, "  that  all  equities  as  to  the  dis- 
tribution of  the  proceeds  of  sale  are 
reserved  by  the  court  for  hearing,"  on 
their  being  brought  in  ;  necessarily  es- 
tablishes the  plaintiff's  claim. — StAke's 
case,  68. 

During  the  term  decrees  or  orders  may  be 
altered  or  rescinded  on  motion  or  peti- 
tion, but  after  only  by  bill. — Buich  v. 
Scott,  120. 

A  decree  affecting  the  rights  of  one  not  a 
party  to  it  is,  as  to  him,  fraudulent,  but  it 
can  only  be  corrected  by  an  original 
bill,  120. 

A  decretal  order,  what  and  how  drawn  up 
according  to  the  English  practice,  121. 

A  decree  considered  as  enrolled  when 
signed  and  filed,  121. 

Dunng  the  term  an  interlocutory  decree 
may  be  set  aside  on  appearance  without 
answer,  under  the  general  powers  of  the 
court. — Hepburn  v.  Mollison,  127. 

A  decree  by  default  for  more  than  is  due 
may,  after  the  term,  if  the  plaintiff  has 
lost  no  testimony,  be  set  aside  to  let  in 
a  defence  upon  the  merits. — Burch  v. 
Scott,  129. 

To  make  a  decree  a  good  bar  in  a  subse- 
quent suit  it  must  be  shewn,  that  the 
matter  of  the  bill  was  res  judicata. — H. 
K.  Chase's  case,  220. 

The  form  of  an  interlocutory  decree  for 
assigning  dower  in  a  house,  234. 

Where  several  defendants  are  jointly  liable 
there  must  be  a  decree  against  all  or 
none,  and  where  several  are  bound  to 
contribute  there  may  be  a  decree  over 
to  enforce  the  contribution. — Lingan  v. 
Henderson,  275;  Hodges  v.  MoUikin, 
507. 

In  its  decree  the  court  must  be  consistent 
with  itself,  it  cannot  say  that  there  is, 
and  also  that  there  is  not  any  cause  of 
suit. — Lingan  v.  Henderson,  275. 

But  without  contradiction  the  court  may, 
to  meet  the  nature  of  the  case,  pass  a 
separate,  a  reciprocal,  a  direct,  or  an 
inverted  decree,  276. 

Where  an  annual  sum  is  charged  upon 
land,  or  a  sum  is  stipulated  to  be  paid 
periodically,  the  decree  may  order  the 
payment  of  what  is  then  due  and  be 
allowed  to  stand  as  a  security'  for  what 
may  thereafter  become  due,  which  may 
be  enforced  in  a  summarj-  way. — Re- 
becca Owings'  case,  297. 

A  decree  may  grant  relief  upon  terms,  or 
so  as  to  dispose  of  the  whole  case. — 
Coletjate  D.  Owings'  case,  40.3. 
On  a  bill  to  account  there  may  be  a  decree 
against  the  plaintiff  or  against  the  de- 
fendant, according  as  the  balance  may 
be  shewn,  404. 
A  decree  may  be  so  framed  as  to  meet  the 


case  disclosed ;  as  a  decree  against  an 
agent  in  the  second  degree  ;  a  decree  in 
favour  of  a  surety  against  his  principal ; 
a  decree  between  two  or  more  defend- 
ants ;  a  cross  decree  to  enforce  specific 
Eerformance  ;  a  decree  to  redeem  may 
e  made  to  operate  as  a  decree  to  fore- 
close ;  or  a  decree  against  both  parties 
in  favour  of  the  State,  404. 

A  decree  must  stand  for  what  it  purports 
to  be  until  revised  or  reversed. — Estep 
V.  Watkins,  489. 

A  decree  against  several  will  only  be 
opened  in  favour  of  him  who  asks  it. — 
Hodges  j;.  MulliMn,  507. 

DELIVERY  OF  POSSESSION. 

On  a  sale  under  a  decree  the  delivery  of 
possession  to  the  purchaser  by  injunc- 
tion well  settled,  and  of  right,  where 
the  possessor  does  not  claim  to  hold  by 
title  paramount  to  the  parties. — Dorsey 
V.  Campbell,  363  ;  McKomb  v.  Kankey, 
363. 

But  immediate  possession  will  not  be  or- 
dered when  it  would  be  attended  with 
a  loss  of  the  then  growing  crop. —  Chap- 
liner.  Chapline,  364;  Wright  v.  Wright, 
365  ;   Taylor  v.  Colegate,  365. 

Where  possession  is  ordered  to  be  deliv- 
ered to  a  purchaser  under  a  fieri  facias, 
there  can  be  no  saving  as  to  the  then 
growing  crop. — Dorsey  v.  Campbell, 
365. 

The  mode  of  ordering  possession  to  be 
delivered  to  a  purchaser  under  a  fieri 
facias,  363. 

DEPRECIATION. 

The  depreciation  of  property  soon  after 
the  j-ear  1819,  its  causes  and  conse- 
quences.— Hoye  V.  Penn,  41. 

The  depreciation  of  paper  money  during 
the  revolution. — The  Chancellor's  case, 
633. 

DEVISE. 

A  devise  of  land  to  W.  O.  his  heirs  and 
assigns  upon  condition,  that  he,  or  the 
person  to  whom  the  estate  may  event- 
ually pass,  maintain  or  pay  £60  a  year 
for  the  maintenance  of  Rebecca,  is  a 
condition  which  runs  with,  and  gives 
her  a  particular  interest  in  the  land,  not 
as  a  rent  or  an  annuit}%  but  for  the  pay- 
ment of  which  he  who  takes  and  enjoys 
the  land  is  personally  liable. — Rebecca 
Owings'  case,  296. 

A  bequest  of  the  debt  carries  with  it  the 
mortgage  and  all  other  securities  of  the 
debt. — Jglehart  r.  Armigcr,  524. 

A  devise  to  a  religious  society,  \vithout 
the  leave  of  the  legislature,  is  void. — 
Murphy  v.  Dallam,  529. 

DIRECTIONS. 
Further  directions  are  those  orders  given 


694 


INDEX. 


for  the  purpose  of  following  out  the 
equity  established  in  substance  by  the 
decree. — Strike's  case,  69. 

DISCOUNT. 

The  nature  and  origin  of  discount  in  bar; 
discount,  recouper,  and  set  off,  in  prin- 
ciple the  same. — Strike's  case,  79. 

A  claim  for  rents  and  profits  may  be  set 
off  against  that  for  improvements  made 
by  a  bona  fide  possessor,  79. 

But  a  wrong  doer  cannot  place  himself  in 
a  situation  to  obtain  a  discount,  80. 

DOWER. 

Dower  assigned  by  commissioners  ap- 
pointed to  make  partition  under  the  act 
to  direct  descents. — Hughes'  case,  47. 

A  widow  who  elects  to  take  the  estate  de- 
vised to  her  in  lieu  of  dower,  is  to  be 
deemed  a  purchaser  for  a  fair  consider- 
ation to  the  value  of  her  dower,  and 
must  have  her  claim  sustained  as  a  lien 
to  that  extent  in  preference  to  credit- 
ors.— Margaret  Hall's  case,  20.3. 

If  the  husband  had  before  marriage  made 
a  lease  for  years  reserving  rent,"the  wife 
might  have  been  endowed  of  the  rever- 
sion and  of  the  rent  from  the  death  of 
the  husband ;  but  if  no  rent  has  been 
reserved,  then  of  the  reversion  only  with 
a  cesset  executio  during  the  term. — H. 
K.  Chase's  case,  227. 

If  husband  and  wife  join  in  making  a 
mortgage,  her  dower  can  be  affected 
only  to  the  extent  of  the  mortgage, 
and  she  may  call  upon  the  personal 
representative  of  the  husband  to  dis- 
charge the  mortgage,  227. 

Jf  the  wife  join  in  levying  a  fine,  or  in 
acknowledging  a  deed  under  the  act  of 
Assembly  to  make  a  lease  or  mortgage, 
her  dower  can  be  affected  only  so  far  as 
may  be  necessary  to  give  it  validity  ac- 
cording to  the  express  extent  of  the  fine 
or  deed,  22S— 231. 

In  equity  the  widow  may  have  an  account 
of  the  rents  and  profits  of  her  dower 
from  the  death  of  her  husband,  and 
costs  if  her  claim  be  opposed,  231. 

The  widow  can  only  recover  according  to 
the  actual  value,  and  will  be  allowed 
interest  on  the  rents  and  profits  as  they 
accrue,  231. 

Upon  a  decree  for  dower  there  can  be  no 
sequestration  of  the  two-thirds  to  sa- 
tisfy the  claim  for  rents  and  profits, 
although  they  may  be  taken  like  any 
other  property  under  a.  fieri  facias,  232. 

Where  the  property  is  incapable  of  divi- 
sion, dower  may  be  given  in  the  form 
of  a  rent  distrainable  of  common  right, 
233. 

The  form  of  an  interlocutor}'  decree  for 
assigning  dower  in  a  single  house,  234. 

On  a  sale  to  effect  a  division,  a  portion  of 
the  proceeds  may  be  awarded  to  the 


widow  in  lieu  of  dower. —  Spurrier  v. 
Spurrier,  477. 

ELECTION. 

Where  a  testator  devises  a  part  of  his  es- 
tate to  one  who  has  a  claim  upon  it 
independently  of  him,  the  devisee  may 
be  put  to  his  election,  and  shall  not 
have  both.— Hall  v.  Hall,  134. 

But  the  intention  must  be  distinctly  ex- 
pressed or  strongly  manifested,  or  it 
must  appear  that  the  claim  is  irreconcil- 
able with  the  devise,  or  that  to  sustain 
the  claim  would  throw  the  testator's  es- 
tate into  a  different  channel,  135. 

EQUITY. 

That  which  might  have  been  ordered, 
when  fairly  done  maybe  confirmed  :  as 
where  land  devised  to  be  sold  was  sold 
by  the  executor  under  an  apprehension 
that  he  had  been  authorized  to  do  so, 
the  sale  was  confirmed. — Ex  parte  Mar- 
garet Black,  142. 

"VVhere  by  agreement  a  judgment  is  enter- 
ed, to  allow  for  payments,  or  upon  a 
verdict  obtained  by  surprise  or  mistake, 
equity  will  relieve. — Chase  v.  Manhardl, 
348. 

EVIDENCE. 

Depositions  taken  before  the  revolution 
under  the  statute  of  5  Geo.  2,  c.  7,  re- 
ceived and  read. — Rawlings  v.  Stewart, 
22. 

WTiere  a  deposition  or  affidaAdt  is  on  aflir- 
mation,  and  the  peVson  taking  it  does 
not  certify,  that  the  affirmant  is  a 
quaker,  8tc.  the  deposition  or  affidavit 
can  be  of  no  avail. — Ringgold  v.  Jones, 
90. 

There  is  no  publication  of  depositions, 
but  all  objections  are  open  and  may  be 
taken  at  the  hearing. — Strike's  case,  96. 

The  commissioners  may  summon  wit- 
nesses to  testify,  and  on  the  commis- 
sioners certifying  that  the  witness  failed 
or  refused  to  attend,  an  attachment 
against  him  may  be  ordered. — Bryson  v. 
Petty,  182. 

A  solicitor  cannot  be  permitted  to  divulge 
the  secrets  of  his  client  without  his  con- 
sent, and  if  he  be  not  a  party  to  consent 
the  solicitor  must  remain  silent. — H.  K. 
Chase's  case,  222 ;  Hodges  v.  MuUikin, 
509. 

On  bill  or  petition  on  oath  in  the  same 
case,  a  commission  may  be  granted  to 
take  the  testimony  of  an  aged  or  infirm 
witness  de  bene  esse. — Lingan  v.  Hen- 
derson, 238. 

An  objection  before  the  commissioners 
that  the  evidence  is  not  such  as  is  re- 
quired by  the  statute  of  frauds,  if  that 
statute  be  not  relied  on  as  a  defence, 
cannot  be  allowed,  24S. 

A  receipt  is  not  in  all  cases  conclusive. 


but  that  usually  given  for  the  purchase 
money  and  endorsed  on  a  deed  for  land 
is  evidence  of  the  lowest  order,  249. 

Parol  proof  which  eoes  to  sustain  and 
supply  deficiences  in  a  written  insti'u- 
ment  may  be  received,  2-19. 

The  answer  of  one  defendant  cannot  be 
evidence  for  another,  except  in  some 
particular  cases,  267. 

A  co-plaintiff  or  a  co-defendant  may  be 
examined  as  a  witness  if  he  has  no  in- 
terest in  the  matter,  or  none  in  that 
part  of  it  as  to  which  separate  relief 
may  be  given,  26S. 

If  a  co-defendant  has  been  received  by  the 
plaintiff  as  a  witness  to  the  whole,  the 
bill  as  to  him  must  be  dismissed,  268. 

If  a  defendant  in  argument  relies  upon  the 
answer  of  his  co-defendant  as  evidence 
in  his  favour,  he  thereby  makes  it  evi- 
dence against  himself. — Chase  v.  Man- 
hardt,  336. 

Certified  copies  from  the  land  office  are 
deemed  legal  e^ddence. — Cunningham 
V.  Browning,  308. 

A  letter  cannot  be  used  as  evidence  of  a 
contract  in  connexion  with  a  part  only 
of  the  verbal  testimony. — OgdeniJ.  Og- 
den,  287. 

The  mode  of  taking  testimony  in  a  credi- 
tors suit  so  as  to  insure  a  correct  report 
of  it  to  the  court. — Williamson  v.  Wil- 
son, 434. 

Evidence  may  be  taken  before  a  justice 
of  the  peace  under  a  special  order. — 
McKim  V.  Thompson,  154  ;  Clapham  v. 
Thompson,  124. 

The  mode  of  taking  testimony  here  before 
a  justice  of  the  peace  in  relation  to  any 
interlocutory  matter  unknown  to  the 
English  practice. — Hodges  v.  MuOikin, 
507. 

A  defendant  as  to  whom  a  decree  cannot 
be  opened  is  a  competent  witness  for  a 
co-defendant  who  applies  for  leave  to 
file  a  bill  of  review,  507. 

A  trustee  under  the  decree  whose  liability 
to  refund  what  has  been  paid  him  as 
commissioner  will  not  be  increased  by 
opening  the  decree,  is  a  competent  wit- 
ness on  an  application  for  leave  to  file  a 
bill  of  review,  508. 

EXECUTIOIV. 

When  property  equal  in  value  to  the  debt 
has  been  taken  under  a  fieri  facias,  the 
debtor  is  discharged,  and  the  creditor 
must  look  to  the  sheriff. — Hoye  v.  Penn, 
43. 

To  enforce  the  execution  of  a  decree  for 
the  payment  of  money,  and  also  for  in- 
demnification, the  plaintiff  may  have  a 
ca.  sa.  and  an  attachment  at  the  same 
time. — Bnjson  v.  Pcltij,  183. 

A  room  in  a  tavern  may  be  used  as  a  gaol 
by  the  sheriff  to  confine  a  person  under 
a  ca.  sa.,  1S3. 


INDEX.  695 

Upon  a  decree  for  dower,  there  can  be  no 
sequestration  of  the  two-thirds  to  satisfy 
the  claim  for  rents  and  profits  of  the 
dower. — H.  K.  Chase's  case,  372. 

A  decree  for  an  annual  sum  may  be  en- 
forced in  a  summary  way,  or  by  putting 
a  receiver  upon  the  estate  charged. — 
Rebecca  Owings'  case,  297. 

The  manner  in  which  possession  may  be 
ordered  to  be  delivered  to  a  purchaser 
under  a  fieri  facias. — Dorsey  t>.  Ceimp- 
bell,  364. 

Real  estate  not  liable  by  the  common  law 
to  be  taken  in  execution  and  sold  for 
debt,  except  at  the  suit  of  the  State. 
Jones  v.  Jones,  445  ;  Birchfield  v.  Brovm, 
446. 

By  elegit  the  half,  and  aftewards  by  statute 
the  whole  of  the  real  estate  of  the 
debtor  made  liable. — Jones  v.  Jones,  447. 

The  nature  and  extent  of  a  judicial  lien 
upon  real  estate,  447. 

Although  a  lien  fastens  upon  real  estate 
from  the  date  of  the  judgment,  no  exe- 
cution can  be  issued  if  the  case  has 
abated  by  the  death  of  either  party,  un- 
til it  has  been  revived,  448. 

There  is  no  lien  upon  personal  estate  as 
against  third  persons,  until  \he  fieri  facias 
has  been  delivered  to  the  sheriff,  448. 

By  the  seizure  the  sheriff  acquires  a  spe- 
cial property  in  the  goods  taken,  448. 

A  fieri  facias  bearing  teste  before  the 
death  of  the  defendant  evicts  the  real 
and  personal  estate  from  the  hands  of 
the  heir  or  devisee,  and  from  the  exe- 
cutor or  administrator,  449. 

Real  or  personal  property  taken  and  sold 
under  a  fieri  facias  is  thereby  convert- 
ed into  money,  the  realty  being  thus 
converted  into  personalty,  450. 

A  share  of  the  proceeds  of  the  sale  of 
realty,  a  chose  in  action,  cannot  be 
taken  in  execution,  yet  it  maybe  under 
circumstances  applied  by  the  court  to 
the  satisfaction  of  creditors,  459. 

Money  cannot  be  taken  in  execution,  nor 
can  money  in  tlie  hands  of  a  sheriff 
made  under  an  execution  from  another 
court  be  ordered  to  be  brought  into  this 
court,  460. 

Public  stock,  choses  in  action,  &c.  cannot 
be  taken  in  execution  ;  but  choses  in 
action  may  be  attached  at  law. — Wat- 
kins  V.  Dorset,  533. 

If  a  party  cannot  obtain  satisfaction  by 
any  execution  at  law,  he  may  proceed 
by  bill  in  equit^%  534. 

A  judicial  attachment  cannot  be  awarded 
by  the  court  of  chancery,  534. 

To 'constitute  a  valid  title  to  land  pur- 
chased at  a  sheriff's  sale,  it  is  necessary 
-  that  there  should  be  a  return  made  to 
the  fieri  facias,  that  the  return  should 
specify  the  land  sold,  and  that  the  return 
should  be  recorded.— Duvall  v.  Waters, 
589. 


696 


INDEX. 


What  is  deemed  a  sufficiently  certain  de- 
scription in  the  return  of  a  fieri  facias 
of  the  land  sold  under  it,  591. 

EXECUTORS  &  ADMINISTRATORS. 

An  executor  or  administrator  upon  letters 
granted  in  the  Distiict  of  Columbia 
may  sue  here,  but  not  if  granted  in 
another  State  or  a  foreign  countiy. — 
Burch  V.  Scott,  113,  note.  « 

Land  devised  to  be  sold  was  sold  by  the 
executor  under  an  apprehension,  that 
he  was  authorized  to  sell,  the  sale  was 
affirmed. — Ex  parte  Margaret  Black, 
142. 

No  part  of  the  personal  estate  of  a  de- 
ceased debtor  can  be  applied  in  payment 
of  his  debts  without  making  his  execu- 
tor or  administrator  a  party  to  the 
suit. — Jones  «;.  Jones,  460. 

An  absolute  judgment  against  an  execu- 
tor or  administrator  is  conclusive  evi- 
dence against  him  of  a  sufficiency  of 
assets. — Dorsey  v.  Hammond,  472. 

An  executor  or  administrator  who  over- 
pays is  allowed  to  take  the  place  of  the 
creditor  so  paid,  but  he  must  prove  the 
claim  in  like  manner  as  might  have 
been  required  of  tlie  creditor. — Watkins 
V.  Dorsett,  531 ;  Ex  parte  Street,  532. 

FRAUD. 

A  voluntary  conveyance  by  a  parent  who 
is  indebted  at  the  time,  is  of  itself  frau- 
dulent as  against  creditors,  although 
good  between  the  parties. — Hoye  v. 
Penn,  32  ;  Duvall  v.  Waters,  587. 

Where  the  defrauded  party  comes  to  have 
the  conveyance  set  aside,  equity  will 
let  it  stand  for  what  is  really  due,  other- 
wise if  he  who  takes  under  it  comes 
to  have  it  executed. — Strike's  case,  81. 

If  the  statute  of  frauds  be  not  specially 
relied  on,  or  nothing  is  said  of  it,  it  is 
waived,  and  the  defendant  cannot  object 
to  any  proof  because  it  is  not  in  writ- 
ing.— Lingan  v.  Henderson,  248;  Og- 
den  V.  Ogden,  288. 

The  whole  agreement,  as  well  the  con- 
sideration as  the  promise,  must  be  in 
writing. — Ogden  v.  Ogden,  287. 

The  statute  applies  not  to  promises  to 
marry,  but  to  pay  portions,  &c.  in  con- 
sideration of  marriage,  287. 

Although  the  defendant  relies  upon  the 
statute,  yet  he  must  answer  fully,  so 
that  if  any  thing  appears  which  takes 
the  case  out  of  the  statute  the  plaintiff 
may  have  relief,  288. 

Marriage  alone  is  not  a  part  performance  ; 
but  if  the  man  in  consequence  of  a  let- 
ter to  himself,  his  father,  or  a  friend, 
promising  a  portion,  marries,  it  is  a  per- 
formance on  his  part,  and  the  promise 
^  may  be  enforced,  288. 

Equity  will  in  some  cases  relieve  a  party 
from  the  consequences  of  a  fraud  which 


has  been  practised  upon  a  third  per- 
son.— Chase  v.  Manhardt,  350. 

If  a  deed  be  not  read  at  all,  or  be  read 
improperly  to  an  illiterate  man,  he  will 
not  be  bound  by  it. — Colegate  D.  Ow- 
ings'  case,  391. 

Weakness  of  mind  may  be  taken  into 
consideration  with  other  circumstances 
to  shew  fraud,  377—390. 

What  is  meant  by  such  weakness  as  an 
evidence  of  fraud,  391. 

The  various  kinds  of  circumstances  which 
with  weakness  of  mind  constitute  fraud, 
391. 

Fraud  and  deceit  by  him  who  is  trusted  is 
the  most  odious,  397. 

HUSBANTD  AND  WIFE. 

As  to  the  mode  in  which  a  feme  covert 
may  dispose  of  her  real  estate. — H.  K. 
Chase's  case,  228. 

A  wife  cannot  be  a  witness  for  or  against 
her  husband ;  therefore  he  cannot  be 
bound  or  benefited  by  her  answer. — Lin- 
gan V.  Henderson,  260 — 260. 

In  some  cases  the  apparently  joint  answer 
of  husband  and  wife  may  be  treated  as 
her  separate  answer,  269. 

If  she  apprehends  he  will  not  make  a  pro- 
per defence  for  her,  she  may  as  of 
course  obtain  leave  to  answer  sepa- 
rately, 270. 

Real  estate  sold  to  effect  a  division,  the 
rights  of  a  feme  covert  ought  not  to  be 
prejudiced  thereby. — Jones  v.  Jones, 
455. 

A  share  of  real  estate  given  to  the  wife 
for  life,  remainder  to  her  children,  on  a 
sale  to  effect  a  division  her  share  may 
be  paid  to  her  husband  on  his  giving 
bond  to  pay  to  her  children  after  her 
death. —  Wells  v.  Roloson,  456. 

After  a  sale  to  effect  a  division,  tlie  bus- 
band  of  one  of  the  parceners  died,  her 
share  of  the  proceeds  paid  to  herself, 
456  ;  Iglehart  v.  Armiger,  521. 

Real  estate  sold  (o  efl^ect  a  divison,  the 
husband  and  wife  may  elect  to  take  a 
portion  of  the  proceeds  of  sale  in  lieu  of 
the  use  of  the  whole  given  to  the  wife 
for  life. —  Wells  v.  Roloson,  457. 

If  3,  feme  covert  devisee  for  life  elects  to 
take  a  part  of  the  proceeds  of  sale  as 
the  value  and  in  lieu  of  her  life  estate, 
she  must  do  so  by  an  application  in 
writing  attested. —  Wells  v.  Roloson,  457. 

The  law  recognised  in  relation  to  what  is 
called  the  wife's  equity. — Jones  v.  Jones, 
459. 

A  sale  to  effect  a  division,  one  shai-e  being 
the  properly  of  the  wife,  tlie  wife  died, 
the  share  considered  as  personalty  and 
awarded  to  the  husband. — Spurrier  v. 
Spurrier,  476 — 478. 

IMPROVEMENTS. 
A  mortgagee  in  possession  may  be  allow- 


INDEX. 


697 


ed  for  repairs  and  lastina;  improve- 1 
ments. — Rowlings  v.  Stewart,  22. 

On  a  bill  ibr  specific  performance  the 
defendant  being  unable  to  make  a  valid 
title,  he  was  ordered  to  make  the  plain- 
tiif  a  reasonable  allowance  for  such  im- 
provements as  would  be  beneficial  to 
any  subsequent  possessor. — Rawlings  v. 
Cairoll,  76. 

A  bona  fide  possessor  is:norant  of  his  ad- 
versary's title  may  be  allowed  for  such 
improvements  as  enhance  the  value  of 
the  property. — Strike's  case,  76. 

A  mala  fide  possessor  can  have  no  claim 
to  any  such  allowance,  77 ;  McKombx. 
Kankey,  363. 

A  claim  by  a  bona  fide  possessor  for  im- 
provements may  be  discounted  from 
that  made  against  him  for  rents  and  pro- 
fits or  for  waste. — Strike's  case,  79 ; 
Rawlings  v.  Carroll,  76. 

A  mala  fide  meddler  cannot  be  allowed 
any  thing  for  taxes,  &c.  in  relief  of  the 
property  any  more  than  for  improve- 
ments.— Strike's  case,  83. 

In  opposition  to  a  claim  for  dower  the 
heir  can  have  no  allowance  for  meliora- 
tions and  improvements. — H.  K.  Chase's 
case,  232. 

A  decree  for  the  sale  of  land  may  be  of 
such  a  nature  as  to  leave  the  claim  for 
improvements  to  be  adjusted  by  further 
directions. — Strike's  case,  70. 

INFANT. 

Money  will  not  be  paid  out  to  a  guardiaa 
ad  litem  of  an  infant  party. —  Corric  v. 
Clarke,  8-5. 

Land  might,  before  the  act  of  1785,  ch. 
72,  s.  5,  have  been  sold  to  pay  debts 
with  the  consent,  according  to  the  act  of 
1773,  ch.  7,  s.  2,  of  the  guardian  ad  litem 
of  the  infant  heir. — Pue  v.  Dorseij,  140. 

The  proceeds  of  the  sale  of  land  devised 
to  a  woman  for  life,  remainder  to  her 
children,  paid  to  her  husband  as  their 
guardian  on  his  giving  bond. —  Wells  v. 
Roloson,  4-56,  457. 

After  a  sale  to  effect  a  division  the  shares 
awarded  to  the  infants  may  be  paid  to 
their  mother  on  her  giving  bond  to 
account  as  their  guardian.  —  Spurrier  v. 
Spurrier,  477. 

INJUNCTION. 

Orders  to  stay  proceedings  or  the  execu- 
tion of  a  decree  of  this  court  treated  as 
injunctions.— -Burch  v.  Scott,  123;  Clap- 
ham.  V.  Thompson,  123. 

Where  an  injunction  has  been  obtained 
against  an  executor  or  administrator,  it 
will  be  sufficient  if  the  answer  states 
facts  which  must  have  been  within  fiie 
knowledge  of  the  testator  only,  upon 
the  belief  of  the  executor  or  adminis- 
trator to  have  the  injunction  dissolv- 
•ed. — Coalc  v.  Chase,  137. 

88 


In  what  cases  on  the  bill  alone  an  injunc- 
tion, if  prayed,  may  be  granted,  and 
how  the  bill  must  be  verified. — Jones  v. 
Magill,  ISO  ;  Jenifer  v.  Stone,  189  ;  Paul 
V.  Nixon,  201. 

How  and  under  what  circumstances  on 
the  coming  in  of  the  answer  there  may 
be  amotion  to  dissolve,  ISO. 

The  rule  further  proceedings  and  the  ex- 
ceptions to  the  answer  may  be  heard 
and  acted  upon  together  with  the  motion 
to  dissolve,  181 ;  "Gibson  r.  Tilton,  3-53. 

An  injunction  in  extraordinaiy  cases  is 
granted  upon  terms  suited  to  the  pecu- 
liar circumstances,  allowing  a  motion  to 
dissolve  to  be  heard  at  an  early  day. — 
Jones  V.  Magill,  1S2 ;  McMechen  v.  Sto- 
ry, 184;  Jenifer  \.  Stone,  188;  Diffen- 
derffer  v.  Hillen,  190 ;  Williamson  v. 
Wilson,  419. 

Under  the  same  bill  a  ne  exeat  as  well  as 
an  injunction  may  be  granted. — Brysou 
V.  Petty,  182. 

An  injunction  may  be  partially  dissolved 
on  the  defendant's  giving  bond,  182. 

Where  an  injunction  has  been  granted  on 
terms,  leave  to  amend  the  bill  will  only 
be  granted  without  prejudice  to  tliose 
terms. — McMechen  v.  Story,  184. 

A  defenfant  without  waiting  a  subpmna 
may  answer  immediately,  and  there- 
upon move  for  a  dissolution,  185. 

Where  the  injunction  has  been  granted 
with  leave  to  move  for  a  dissolution 
without  answer,  if  the  defendant  doe.s 
answer  it  will  be  considered  on  the  mo- 
tion, 185. 

Delay  in  applying  for  an  injunction  affords 
a  strong  reason  for  refusing  it,  185. 

The  discretionary  power  of  commission- 
ers to  lay  out  a  new  road  or  street  can- 
not be  restrained  by  injunction. —  IVorih- 
inston  V.  Bicknell,  187  ;  Dijfcnderffer  v. 
Hillen,  .190  ;  Pascault  v.  The  Commis- 
sioners of  Baltimore,  584. 

An  injunction  to  stay  the  levying  of  what 
is  due  when  the  party  insists  on  levying 
what  is  not  due. — Jenifer  v.  Stone,  188. 

Where  there  are  several  defendants  all 
must  answer  before  there  can  be  a  mo- 
tion to  dissolve  ;  but  to  this  there  are  ex- 
ceptions.— Jones  V.  Magill,  190;  Sleicarl 
V.  Barry,  192  ;  Williams  v.  Hall,  194 ; 
Chapline  v.  Betty,  197  ;  Toitg  v.  Oliver, 
199. 

When  the  chancellor  is  absent  from  the 
city  where  the  court  is  held,  an  injunc- 
tion may  be  issued  with  the  sanction  of 
a  disinterested  solicitor,  subject  to  tlie 
approval  of  the  chancellor. — Steicart  v. 
Berry,  191. 

An  injunction  cannot  be  dissolved  on  a 
consideration  of  the  opposing  title, 
without  an  answer  to  the  interrogatories 
of  the  bill,  192. 

If  there  be  a  defect  in  the  injunction  bond, 
the  injunctioii  will  not  therefore  be  dis- 


698 


INDEX. 


solved  without  allowing  time  to  give 
good  security.- —  Williams  v.  Hall,  194. 

The  injunction  bond  should  cover  the 
whole  amount  of  the  supersedeas  judg- 
ment, 194. 

The  injunction  cannot  be  dissolved  if  the 
answer  be  evasive,  or  does  not  deny  the 
facts  on  which  the  plaintiff's  equity 
rests,'  195. 

Although  a  defendant  cannot  directly 
coippel  his  co-defendant  to  answer,  yet 
the  plaintitf  may  be  forced  to  urge  for- 
ward, so  as  to  enable  the  defendant 
to  move  for  a  dissolution. — Jones  v.  Ma- 
gill,  19S  ;   Tong  v.  Oliver,  199. 

The  answer  of  an  administrator  if  contra- 
dictory will  not  be  sufficient  to  dissolve 
the    injunction. —  Tons;  v.  Oliver,   199. 

After  the  dissolution  of  the  injunction  the 

f)laintitf  may  proceed  on  his  bill  for  re- 
ief  at  the  final  heai-iug. — Paul  v.  Nixon, 
201. 

On  a  motion  to  dissolve,  the /acfe  set  forth 
in  the  answer  are  alone  to  be  regarded, 
not  the  opinions  of  the  defendant. — 
Chase  v.  Manhardt,  335. 

If  it  appears  that  there  still  remains  a  dis- 
pute between  the  parties  the  injunction 
is  continued,  336. 

Eut  if  there  appears  to  be  an  overcharge 
or  riere  mistake  in  a  judgment  at  law, 
it  may  be  corrected  without  ordering  a 
new  trial,  350. 

If  the  facts  on  which  the  plaintiff's  equity 
rests  are  positively  denied,  the  injunc- 
tion must  be  dissolved. — Gibson  v.  Til- 
ton,  355. 

An  injunction  may  be  gianted  and  con- 
tinued as  a  suitable  auxiliary  to  the 
appointment  of  a  receiver. — William- 
son V.  Wilson,  428. 

The  mode  of  obtaining  a  dissolution  of  the 
injunction  where  the  suit  has  abated  by 

■  the  death  of  a  party. — Griffith  v.  Bro- 
naugh,  548.        ' 

No  injunction  will  be  granted  to  stay  pro- 
ceedings at  law  until  a  bond  has  been 
given. — Billingsleaw.  Gilbert,  .566. 

The  penalty  of  the  injunction  bond  to 
stay  proceedings  at  law  should  be  at 
least  double  the  amount  of  principal, 
interest,  and  costs,  566. 

If  the  surety  be  insufficient  the  party  may 
be  allowed  time  to  2,ive  good  surety  ; 
but  not  if  tiie  court  "lias  been  imposed 
upon,  566. 

Instead  of  a  bond  the  defendant  at  law 
may  deposite  the  amount  with  the  re- 

fister,  566. 
ere  the  dissolution  of  an  injunction 
has  been  obtained  by  fraud,  it  may  be 
reinstated,  56S. 
An  injunction  to  stay  waste  or  trespass 
may  be  granted  here  in  any  case  in 
which  it  would  be  granted  according  to 
the  English  authorities. — Duvallf.  Wa- 
ters, 576. 


Where  waste  has  actually  been  commit- 
ted, the  plaintitf  may  under  an  injunc- 
tion bill  have  an  account  of  waste  com- 
mitted, 577. 

According  to  the  English  authorities  an 
injunction  cannot  be  granted  to  stay 
waste,  if  the  title  be  denied,  570,  577. 

But  in  cases  of  patent  right,  nuisance,  and 
some  others,  an  injunction  may  be 
granted  pendente  lite  at  law,  577 — 584. 

Here  an  injunction  maybe  granted  to  stay 
waste  pending  an  action  at  law,  or  a 
suit  in  this  court  to  try  the  right,  580  ; 
The  Attorney  General  v.  Norwood,  581 ; 
Coale  v.  Garretson,  581 ;  Flannagan  v. 
Krips,  582 ;  Gittings  v.  Dew,  583. 

But  if  the  plaintiff  fails  or  refuses  to  in- 
stitute a  suit  to  establish  his  right,  he 
can  have  no  injunction  to  stay  ti-espass 
upon  land  his  title  to  which  is  denied. — 
Duvall  V.  Waters,  585. 

If  after  the  plaintiff  has  filed  his  bill  here 
to  establish  his  right,  waste  is  threat- 
ened or  committed,  he  should  apply 
here  for  an  injunction  by  petition,  not 
by  bill,  585. 

An  injunction  to  stay  waste  pending  a 
suit  to  try  the  right  will  not  prevent  the 
occupying  tenant  from  making  the  or- 
dinary uses  of  the  land,  584. 

After  a  judgment  at  law  the  injunction 
may  be  perpetuated,  dissolved,  or  lim- 
ited according  to  the  extent  of  that 
judgment. — HilliJ.  Bowie,  594. 

INSOLVENCY. 
A  person  in  solvent  circumstances  may 
pay  as  he  pleases,  but  when  he  falls  into 
a  condition  of  insolvency  that  privilege 
ceases,  and  his  effects  must  be  distri- 
buted equally  or  pro  rata  among  all  his 
creditors. — Williamson  v.  Wilson,  425. 

INVESTMENT. 
Money  in  court  or  in  the  hands  of  its 
trustee,  may  be   invested  so  as  to  be 
made    productive  pending  the   litiga- 
tion.— Latimer  v.  Hanson,  56. 

ISSUE  OF  FACT. 

In  a  creditor's  suit  if  a  claim  be  strongly 
litigated  and  of  difficult  investigation, 
an  issue  may  be  sent  out. — Ringgold  v. 
Jones,  89. 

It  is  not  indispensably  necessary  in  any 
case  that  an  issue  should  be  made  up  ; 
it  is  only  resorted  to  where  the  weight 
of  the  evidence  can  be  better  estimated 
by  a  jury. — Fornshill  v.  Murray,  485. 

JUDICIARY. 

The  colonial  courts  of  vice  admiralty  and 
their  jurisdiction. — The  Chancellor's 
case,  607  ;  Hustings  v.  Plater,  613. 

A  history  of  the  independency  of  the  ju- 
diciary, 607 — 615. 

The  mode  of  constituting  a  chancellor 


INDEX. 


699 


"wTio  receives  no  such  commission  as 
that  ^ven  to  a  judge,  623. 

A  judicial  salaiy  is  a  compensation  for 
services  rendered,  and  must  be  secured 
during  the  continuance  of"  the  commis- 
sion ;  but  may  be  reduced  when  the 
office  is  vacant,  621. 

As  to  the  amount,  duration  of,  and  appro- 
priation of  a  judicial  salaiy,  676. 

A  judicial  salary  cannot  be  sold  or  mort- 
gaged, 621. 

A  table  exhibiting  a  comparative  view  of 
the  amount  of  judicial  salaries,  679. 

The  duties  of  judge  of  the  land  office  and 
those  of  chancellor  exercised  by  the 
same  judicial  officer,  64S ;  Cunning- 
ham V.  Browning,  309. 

JUDGMENT. 

At  common  law  as  between  party  and 
party,  a  judgment  binds  from  the  first 
aay  of  the  term  ;  but  as  against  third 
persons  it  only  operates  as  a  lien  upon 
the  real  estate  from  the  day  on  which  it 
is  signed,  and  upon  the  personalty  from 
the  day  on  which  the  fieri  facias  is  put 
into  the  hands  of  the  sheriff. — Jones  v. 
Jones,  448. 

A  judgment  in  favour  of  the  State  ope- 
rates as  a  lien  upon  lands  from  the  com- 
mencement of  the  suit,  445. 

An  absolute  judgment  against  an  execu- 
tor or  administrator  is  conclusive  evi- 
dence of  a  sufficiency  of  assets. — Dor- 
sey  V.  Hammond,  472. 

JURISDICTION. 

A  power  given  by  will  to  appoint  com- 
missioners to  make  partition  cannot  au- 
thorize the  chancellor  to  proceed  ex 
parte. — Howard's  case,  367. 

The  case  as  set  forth  in  the  bill  must  ap- 
pear at  the  hearing  to  be  of  such  a  na- 
ture as  to  fall  within  the  jurisdiction  of 
a  court  of  chancery. — Estep  v.  Wat- 
kins,  489. 

Consent  cannot  give  jurisdiction  where 
the  court  has  none. — Iglehart  v.  Armi- 
ger,  528. 

A  ship  in  the  harbour  of  Annapolis  was 
held  to  be  within  the  jurisdiction  of  the 
colonial  court  of  vice  admiralty. — Hast- 
ings V.  Plater,  613. 

LAND 

In  England  all  land  held  directly  or  indi- 
rectly of  the  king — the  mode  of  obtain- 
ing an  estate  of  Inheritance,  or  a  lease 
for  years  of  the  king. — Cunningham  v. 
Browning,  301—303. 

No  land  can  be  absolutely  revested  in  the 
king,  or  the  title  of  any  one  in  posses- 
sion devested  without  office  found,  302. 

The  discoverer  of  escheatable  land  usu- 
ally rewarded  with  a  lease  thereof,  303. 

The  lord  proprietar}'  absolute  owner  of 
the  soil  which  he  sold  or  gave  to  indi- 


viduals in  pai'cels,  from  whom  they 
were  continually  reverting  by  their  fail- 
ing to  comply  with  the  terms  of  sale, 
or  by  forfeiture  or  escheat,  305,  306. 

Formerly  in  all,  and  now  in  some  particu- 
lar cases,  an  inquest  of  office  was  ne- 
cessary to  ie%^est  in  the  proprietary  or  in 
the  State  lands  which  had  been  granted 
to  individuals,  306. 

The  discoverer  of  esc  beatable  land  is  re- 
warded with  a  portion  of  its  value,  307. 

The  acts  of  confiscation  invested  the  State 
with  the  title  to  the  lands  without  office 
found,  307. 

The  State  takes  all  land  subject  to  the  in- 
dividual rights  which  had  been  acquired 
from  the  lord  proprietary-,  307. 

Office  found  necessary  to  devest  a  title 
held  by  an  alien,  Sec.  307. 

The  mode  of  obtaining  a  patent  grant  of 
land  from  the  land  office,  308—326; 
Hopper  v.  Coleston,  323. 

Origin  and  nature  of  the  land  office  as  con- 
nected with  the  court  of  chancery,  308. 

The  five  different  kinds  of  land  warrants, 
310  ;  Fowler  v.  Goodivin,  328. 

Proceedings  on  an  application  for  land  in 
the  land  office,  other  than  those  under  a 
caveat,  314. 

The  grantee  is  entitled  to  whatever  falls 
wiitliin  the  tract  described  in  his  patent ; 
and  therefore  is  entitled  to  alluvion, 
accretions,  and  insular  formations. — 
Ridsely  v.  Johnson,  316. 

A  sufficient  description  gives  an  incipient 
legal  title,  and  before  a  patent  issues  it 
isan  imperfect  legal  right,  not  an  equi- 
table interest. — Cunningham  v.  Brown- 
ing, 324. 

A  patent  gives  a  perfect  legal  title,  which, 
by  relation,  takes  effect  from  the  com- 
mencement of  the  incipient  title,  325. 

What  is  deemed  a  sufficient  description  so 
as  to  be  regarded  as  a  binding  incipient 
title,  327  ;  Fowler  v.  Goodirw,  327. 

An  explanation  of  the  term  location  as 
applied  to  land,  329. 

LEGACY. 

An  annual  sum  given  for  maintenance 
takes  effect  from  the  death  of  the  testa- 
tor.— Rebecca  Owings'  case,  296. 

The  bequest  of  an  annual  sum  charged 
upon  land  in  the  hands  of  the  holder  is 
a  legacy.the  payment  of  which  equity 
willenforce,  296. 

Where  a  person  is  about  to  make  his  will 
devising  his  property  to  a  person,  and 
another  prevents  it  by  promising  to 
convey  the  property  or  pay  the  money, 
and  the  testator  in  consequence  thereof 
docs  not  so  make  his  will,  the  promise 
is  valid  and  may  be  enforced. — Cole- 
gate  D.  Owings'  case,  404. 

LIEN. 
A  judgment  at  common  law  operates,  aa 


700 


INDEX. 


between  the  parties,  as  a  lien  upon  the 
real  estate  from  the  first  day  of  the 
term ;  but  by  statute  it  only  so  operates 
as  against  purchasers  from  its  date. — 
Jones  V.  Jones,  447. 

Although  the  lien  liistcns  upon  the  real 
estate  by  the  judgment,  yet  if  the  case 
has  abated  by  the  death  of  either  party, 
no  execution  can  issue  until  it  has  been 
revived,  448. 

The  lien  of  a  judgment  does  not  fasten 
upon  personal  estate  until  tha  fieri  facias 
has  been  actually  delivered  to  the  she- 
riff, 448. 

A  judgment  in  favour  of  the  State  ope- 
rates as  a  lien  upon  its  debtor's  real  es- 
tate from  the  commencement  of  the 
suit,  445  ;  Hodges  v.  Mullikin,  515. 

The  nature  of  a  vendor's  lien,  and  how  it 
differs  from  other  liens.— Moreton  v. 
Harrison,  438  ;  Iglehart  i;.  Armiger,  522. 

An  assignment  of  the  bond  or  note  given 
to  secure  the  payment  of  the  purchase 
money  does  not  carry  with  it  the  vend- 
or's lien,  but  is  a  tacit  relinquishment 
of  it. — Iglehart  v.  Armiger,  524. 

There  may  be  two  or  more  equitable  liens 
upon  the  same  land,  as  well  as  two  or 
more  mortgages,  526. 

On  a  sale  under  a  decree  the  court  is  the 
vendor,  and  as  such  the  holder  of  the 
equitable  lien,  527. 

If  the  purchase  money  be  not  paid,  the 
court  under  its  equitable  lien  may  order 
a  resale  at  the  risk  of  the  purchaser. — 
Mullikin  y.  Mullikin,  541. 

LUNATIC. 

A  woman  may  be  appointed  committee  of 
a  lunatic. — Gibson's  case,  141. 

A  lunatic  cannot  sue  hy prochein  amy; 
but  without  being  so  found  lunatic  may, 
under  circumstances  come  in  with  other 
persons  as  co-plaintiffs,  who  may  be 
appointed  to  receive  the  relief  as  her 
trustees. — Rebecca  Owings'  case,  293 — 
295. 

Without  an  inquisition  no  one  can  be  ju- 
dicially restrained  as  a  lunatic,  293. 

The  ordering  of  an  inquisition  is  discre- 
tionary, and  a  person  who  is  in  fact  non 
compos  mciiiis  maybe  protected  without 
an  inquisition,  294. 

Although  a  father  may  appoint  a  guardian 
to  his  infant  child,  yet  he  cannot  ap- 
point a  guardian  of  his  adult  lunatic 
child,  295. 

On  the  death  of  a  lunatic,  who  has  been 
permitted  to  sue  with  others  as  her 
trustee,  the  suit  abates  ;  and  the  trus- 
tee's authority  ceases  as  to  all  purposes, 
but  that  of  closing  his  accounts,  298. 

A  suit  which  has  been  dismissed  by  undue 
influence  upon  a  plaintiif  in  her  dotage, 
may  be  reinstated  and  conducted  by  her 
solicitors. — Colegate  D.  Owings'  case, 
372. 


]  A  person  in  dotage  or  an  imbecile  adult 
may  sue  by  next  friend,  373  ;  Roihwell 
V.  Bouahcll,  373. 

The  person  and  property  of  one  in  dotage, 
though  not  declai-ed  a  lunatic  may  be 
protected  by  the  court. — Colegate  D. 
Owings'  case,  373 — 375. 

In  order  to  ascertain  the  mental  condition 
of  a  party,  medical  professors  may  be 
ordered  to  visit  him  and  make  report  to 
the  court,  375. 

The  maxim  of  the  English  law,  that  no 
man  of  full  age  shall  be  in  any  plea  to 
be  pleaded  by  him  received  by  the  law 
to  stultify  himself  and  disable  his  own 
person,  considered  and  rejected,  376. 

Under  the  general  legal  terra,  non  compos 
mentis,  is  comprehended  every  species 
of  mental  derangement  which  incapa- 
citates a  man  from  making  a  legal  con- 
tract, 334. 

Non  compos  mentis,  as  in  idiocy,  as  in  de- 
lerium,  as  in  lunacy,  and  as  in  dotage, 
386—389. 

The  becoming  a  lunatic  does  not  release 
a  contracting  party  from  his  liabilitj' ; 
and  therefore  the  court  may  appoint  a 
trustee  to  convey  in  his  name  in  speci- 
fic performance  of  his  contract. — Cole- 
gate D.  Owings'  case,  405. 

A  lunatic  defendant  may  have  a  guardian 
ad  litem  appointed  to  answer  for  him. — 
Roihwell  v.  Boushell,  373. 

MARRIAGE. 

The  statute  of  frauds  relates  only  to  agree- 
ments made  upon  consideration  of  mar- 
riage.— Ogden  V.  Ogden,  287. 

Marriage  alone  is  not  a  part  performance 
of  such  an  agreement,  288. 

A  letter  may  under  certain  circumstances 
be  deemed  a  binding  contract  within 
the  meaning  of  the  statute,  2SS. 

A  contract  of  marriage  is  the  parent  not 
the  child  of  civil  society. — Fornshill  v. 
Murray,  4SJ. 

If  a  marriage  be  valid  where  celebrated, 
it  is  valid  every  where,  485. 

It  should  be  solemnized  in  the  face  of  a 
church,  or  with  the  blessing  of  a  cler- 
gyman, 481. 

General  reputation  with  some  exceptions 
is  deemed  sufficient  evidence  of  a  mar- 
riage, 482. 

A  divorce  can  only  be  effected  by  an  act 
of  the  General  Assembly,  482. 

A  county  court  may  inquire  into  the  va- 
lidity of  a  marriage,  and  declare  it 
void,  483. 

The  court  of  chancery  may  perhaps  an- 
nul a  marriage  which  has  been  pro- 
cured by  abduction,  terror,  and  fraud, 
483. 

After  the  death  of  husband  or  wife  there 
can  be  no  judicial  proceeding  had  for 
the  purpose  of  bastardizing  the  issue,  or 
barring  dower  or  courtesy,  433. 


INDEX. 


701 


When  a  party  founds  his  claim  upon  the 
validity  of  a  mairiac;?,  or  the  legitimacy 
of  any  one,  such  validity  or  lej^itimacy 
must  be  decided  by  the  court,  484. 

MONEY. 

Money  ordered  to  be  paid  out  to  the  attor- 
ney in  i'act,  or  to  the  solicitor  of  the 
party. — Hoye  v.  Penn,  40. 

Money  will  not  be  paid  to  the  mere  e^uar- 
dian  ad  litem  of  the  defendant. —  Corric 
V.  Clarke,  86. 

Money  may  be  brought  into  court  by  a  trus- 
tee under  a  decree  if  he  doubts  as  to  its 
proper  application. — V/ells  v.  Roloson, 
456. 

To  obtain  an  order  upon  a  defendant  to 
bring  money  into  court,  before  the  final 
hearing,  it  must  appear,  that  he  who 
asks  it  has  an  interest  in  the  money, 
that  he  who  holds  it  has  no  equitable 
right  to  it,  and  the  facts  as  then  shewn 
must  be  open  to  no  further  contro- 
versy.— McKim  V.  Thompson,  156. 

After  a  bill  filed  if  the  purchaser,  being  in 

Eossession,  exercises  acts  of  ownership 
e  may  be  compelled  to  bring  the  pur- 
chase money  into  court,  161. 

Where  it  is  agieed,  that  a  debt  shall  be 
secured  by  negotiable  notes  payable  six 
months  after  date,  and  the  party  fails  to 
give  the  notes,  the  debt  shall  bear  inter- 
est from  the  day  when  the  notes,  had 
they  been  given,  would  have  fallen  due. 
Chase  v.  Manhardt,  .341. 

A  debt  shall  not  carry  interest  during  the 
time  the  debtor  is  legally  restrained 
from  paying  it,  342. 

If  a  creditor  receives  or  recovers  the  prin- 
cipal so  as  not  to  relinquish  his  claim  to 
interest,  he  may  afterwards  sue  for  and 
recover  the  interest,  348. 

Where  there  has  been  no  decree  to  ac- 
count, but  the  sum  has  been  ascertained 
by  the  auditor  by  consent,  the  interest 
ought  not  to  be  made  principal  .i.s  in 
other  cases. — Hoye  v.  Penn,  34. 

Where  a  decree  for  a  sale  expressly  or 
tacitly  affirms  the  validity  of  the  plain- 
tiff's claim,  interest  upon  it  is  a  subject 
of  further  directions. — Strike's  case,  70'. 

In  a  crerlitor's  suit  the  claims  as  adjusted 
carry  interest  until  paid,  if  the  proceeds 
be  sufficient  to  ])ay  all. — Millar  v.  Ba- 
ker, 148. 

In  a  creditor's  suit  each  claimant  is  en- 
titled to  a  proportion  of  the  interest 
arising  on  the  purchase  money  of  the 
estate  sold,  according  to  the  sum  stated 
by  the  auditor  to  be  then  due  him. — 
Low  V.  Conner,  469. 

MORTGAGE. 
Decree  to  redeem  directing  an  account  to 
be  taken  of  the  rents  and  profits  and 
waste  while  in  possession  of  tlie  mort- 
gagee, allowing  for  repairs  and  lasting 


improvements. — Rawlings  v.  Stewarlt 
22. 

To  ascertain  the  true  nature  of  the  contract 
the  court  may  look  into  all  the  contem- 
poraneous agreements  and  dealings  be- 
tween the  parties. — H.  K.  Chase's  case, 
225. 

The  distinction  between  a  mortgage  and 
a  sale  with  a  covenant  ibr  repurchase, 
225. 

If  the  husband  and  wife  join  in  making  a 
mortgage  her  right  of  dower  can  be 
affected  only  to  the  extent  of  the  mort- 
gage, and  she  may  call  on  the  personal 
representative  of  the  husband  to  dis- 
charge the  mortgage,  227. 

Not  less  than  twenty  years  can  operate  as 
a  bar  of  a  mortgage  or  equitable  lien 
although  the  bond  or  note  may  be  barred 
by  twelve  or  three  years. — Lingan  v. 
Henderson,  282. 

A  holder  of  an  equitable  lien  cannot  be 
compelled  by  the  usual  notice  to  come 
in  under  the  decree  in  a  creditors  suit, 
but  if  he  does  come  in  the  purchaser 
will  take  clear  of  his  claim. — Millar  v. 
Baker,  148. 

A  decree  to  redeem  may  be  made  to  result 
in  a  foreclosure. — Colegate  D.  Owings' 
case,  404  ;  Etchison  v.  Dorsey,  537. 

Where  the  defendant  fails  to  answer,  and 
the  mortgage  debt  is  established  by  the 
mortgage  and  the  plaintiff's  affidavit,  no 
commission  need  be  issued ;  the  bill 
may  be  at  once  taken  pro  confesso. — 
Claphamv.  Clapham,  127. 

A  responding  defendant  will  be  permitted 
to  shew  pa}^ments  either  before  a  de- 
cree or  after  before  the  auditor,  127 . 

NE  EXEAT. 
A  we  exeat  as  well  as  an  injunction  may 
be  granted  upon  the  same  bill,  and  at 
the  same  time. — Brysonv.  Petty,  182. 

ORDERS. 

An  Older  to  take  testimony  and  to  shew 
cause  as  to  the  sufiiciency  of  an  appeal 
bond. — Ringg9ld's  case,  6. 

A  special  order  affirming  the  auditor's  re- 
port in  part,  and  directing  a  distribu- 
tion accordingly. — Hoye  v.  Penn,  36. 

Further  directions  are  those  oixiers  given 
lor  the  purpose  of  following  out  tlic 
equity  which  has  been  substantially  es- 
tablished by  the  decree. — Strike's  case, 
69. 

Where  a  decree  declares  certain  convey- 
ances to  be  void  and  directs  the  property 
to  be  sold,  it  virtually  establishes  the 
plaintiff's  claim,  leaving  interest,  rents 
and  profits,  allowances  for  improve- 
ments, and  every  thing  in  relation  to 
the  claims  of  other  creditors  who  may 
come  in  for  furtlier  directions,  70. 

The  form  of  an  order  md  to  have  the  bill 
takcnpro  confesso. — Burch  v.  Scott,  114. 


702 


INDEX. 


An  order  to  ^ive  notice  of  a  motion  to 

dissolve  an  injunction  at  the  then  next 

term. — Jones  v.  Magiil,  180. 
An  order  appointing  a  receiver. — Hannah 

K.  Chase's   case,  214;  Williamson  v. 

Wilson,  428. 
An  order  to  take  testimony  respecting 

claims  in  a  creditor's  suit,  434. 
An  order  calling  on  the  administrator  of  a 

receiver  to  account,  438. 
An  order  overruling  pleas  and  requiring 

an  answer  by  a  given  day. — Moreton  v. 

Harrison,  496. 

PARTITION. 

The  mode  of  making  partition  of  an  in- 
testate's estate  under  the  act  to  direct 
descents. — Hughes'  case,  46. 

Where  the  parties  take  by  purchase,  par- 
tition may  be  made  by  the  common  law 
in  chancery,  although  some  of  them  be 
infants. —  Corse  v.  Polk,  233  ;  Wells  v. 
Roloson,  456. 

In  such  case  a  sale  may  be  made  of  the 
land  if  necessary,  233,  456. 

The  commissioners  may  award  to  each 
his  part,  or  if  not,  it  may  be  done  by 
lot  by  the  court,  233. 

A  sum  of  money  awarded  by  way  of 
equality  of  partition,  may  be  declared 
to  be  a  lien  upon  the  share  of  him  di- 
rected to  pay,  234. 

A  testamentary  direction,  that  the  chan- 
cellor shall  appoint  persons  to  make  a 
partition  cannot  give  jurisdiction  in  any 
way,  much  less  authorize  an  ex  parte 
proceeding. — Howard's  case,  367. 

The  parties  should  each  recommend  per- 
sons to  be  appointed  commissioners  to 
make  partition,  368. 

The  costs  are  borne  equally  or  in  propor- 
tion to  the  respective  shares  of  each. — 
Hughes'  case,  50. 

On  a  sale  to  effect  a  division  of  a  real  es- 
tate, no  one  of  the  distributees  or  his 
assignee  can  take  any  thing  until  he  has 
satisfied  all  that  is  due  from  him  to  the 
others.— MuUikin  v.  MuUikin,  542. 

PARTNERSHIP. 

A  partner  can  only  be  admitted  as  a  credit- 
or against  the  es'tate  of  a  deceased  partner 
for  his  share  of  the  surplus,  after  all  the 
concerns  of  the  partnership  have  been 
fully  settled.— i^iftga-o/f^  v.  Jones,  139. 

At  the  instance  of  a  partner  alleging  that  the 
firm  is  insolvent,  and  that  his  copartners 
are  wasting  the  effects,  a  receiver  may  be 
appointed! — Williamson  r.  Wilson,  423. 

A  partnership  for  a  limited  time  may  be 
dissolved  before  the  expiration  of  the 
time  by  death  or  insolvency,  424. 

PARTIES. 

A  decree  affectina;  the  rights  of  one  not 
a  party  is,  as  to  him,  fraudulent,  and 
he  may  be  relieved  by  original  bill. — 
Burch  V.  Scott,  120. 


Where  the  property  of  several  defendant? 
has  been  sold  under  a  decree  to  satisfy 
a  debt,  leaving  a  sui-plus,  any  one  of 
them  may  obtain  an  order  directing  a 
distribution  of  such  surplus  among 
them. — Hoye  v.  Penn,  38. 

The  want  of  proper  parties  may  be  taken 
advantage  of  by  demurrer,  by  plea,  or 
at  the  hearing. — R.  Owings' case,  292. 

Persons  having  no  interest  in  the  matter 
may  be  permitted  to  come  in  as  co- 
plaintiffs  with  a  person  who  is  in  fact 
jion  compos  mentis,  in  order  to  take  care 
of  his  interests,  29.3—295. 

No  part  of  the  personal  estate  of  a  de- 
ceased debtor  can  be  applied  in  pay- 
ment of  his  debts  without  making  his 
executor  or  administrator  a  paity  to  the 
suit. — Jones  v.  Jones,  460. 

PETITION. 

Where  a  matter  can  only  be  brought  be- 
fore the  court  by  petition,  if  the  matters 
therein  set  forth  be  not  denied  on  oath, 
they  must  be  taken  to  be  true. — H.  K. 
Chase's  case,  212. 

PLEAS  AND  PLEADING. 

If  a  defendant  pleads  and  answers  to  the 
same  matter,  his  answer  overrules  his 
plea — and  the  same  principle  holds  in 
case  of  demurring  and  ausweiing,  or 
demurring  and  pleading  to  the  same 
part. — Hannah  K.  Chase's  case,  217. 

A  plea  of  the  statute  of  limitation  to  a 
bill  to  recover  the  purchase  money  of 
land. — Lingan  v.  Henderson,  246. 

There  may  be  a  plea  of  limitations  to  some 
one  or  more  separate  and  distinct  parts  of 
the  plaintiff's  several  causes  of  suit,  278. 

More  precision  required  in  a  plea  than  a 
bill — a  plea  must  be  certain,  exactly 
applicable  to  the  case,  and  tender  a 
material  issue,  280. 

A  plea  of  the  statute  of  limitations  of  three 
years  does  not  apply  to  a  vendor's  lien  : 
"therefore  as  against  such  a  lien  it  must  be 
rejected,  280 ;  Moreton  v.  Harrison,  500. 

Where  the  bill  states  facts  which  if  true 
Avould  take  the  case  out  of  the  statute 
of  limitations,  a  plea  of  the  statute 
must  be  sustained  bv  an  answer  deriy- 
ins  such  facts,  282,  493. 

A  defendant  may  in  equity  as  well  as  at  law 
plead  several  distinct  pleas. — Moretonr. 
Harrison,  493  ;  Pddgelyv.  Warfield,  494. 

Duplicity  in  one  and  the  same  plea  is  a 
vice  in  pleading  in  equity  as  well  as  at 
law. — Moreton  r.  Harrison,  496. 

Pleadings  in  equity  are  not  so  strict  as  at 
law ;  yet  in  equity  they  must  be  sub- 
stantially sufficient. — Lingan  v.  Hen- 
derson, 280. 

The  case  as  set  forth  must  be  of  equitable 
cotjnizance  as  contradistinguished  from 
that  of  common  law,  or  a  demurrer 
will  lie  or  the  bill  may  be  dismissed  at 
the  hearing,  255. 


INDEX. 


703 


If  any  of  tlie  essential  component  facts 
of  the  case  be  not  proved,  or  be  dis- 
proved, the  bill  must  be  dismissed,  255. 

If  the  cause  of  suit  as  stated  did  not  exist 
when  the  bill  was  filed,  or  has  been  ex- 
tinguished or  barred,  the  bill  must  be 
dismissed,  255. 

Where  there  are  a  plurality  of  defendants, 
and  the  subject  in  controversy  is  di- 
visible, there  may  be  a  decree  against 
all  for  a  part,  or  if  they  are  disjunc- 
tively or  separately  liable  tliere  may  be 
a  decree  against  each,  256. 

If  the  defence  of  any  one  defendant  goes 
to  the  whole  of  one  and  the  same  cause 
of  suit,  the  bill  must  be  dismissed,  al- 
though as  against  some  others  it  might 
have  been  taken  pro  coiifesso,  255,  266. 

A  defendant  who  can  be  in  no  way  held 
liable  cannot  be  allowed  to  put  in  a  de- 
fence against  the  whole  or  any  part  of 
the  case,  276. 

PRACTICE. 

A  party  may  by  petition  object  to  the 
sufficiency  of  an  appeal  bond,  and  be 
allowed  to  take  testimony  and  have  the 
obligors  called  on  to  shew  cause. — Ring- 
gold's case,  5. 

The  principles  and  practice  of  this  court 
derived  from  that  of  England,  18. 

Upon  a  defendant's  being  returned  sum- 
moned he  may  appear  and  demur,  plead 
or  answer. —  Cmcellv.  Sebrey,  18. 

A  defendant  failing  to  appear,  demur, 
plead,  or  answer,  after  having  been 
summoned,  may  be  attached,  18. 

All  sheriffs  to  attend  and  make  return  of 
process,  IS. 

Where  process  is  prayed  against  several 
defendants  they  must  all  answer  or  the 
case  be  in  a  situation  to  have  the  bill 
taken  pro  confesso,  before  tliere  can  be 
any  decree. — Hoye  v.  Penn,  33,  34. 

Where  two  or  more  sue  as  joint  creditors, 
the  proportion  due  to  each  may  be  ad- 
justed after  the  sale  has  been  made  and 
the  proceeds  brought  in,  37. 

The  surplus  of  the  proceeds  of  sale  may 
be  awarded  to  the  representatives  of  the 
debtor  in  proportion  to  their  respective 
interests,  39. 

Money  orderetl  to  be  paid  to  the  attorney 
in  fact  or  solicitor  of  the  party,  40. 

The  trustee  under  the  decree  has  the  con- 
trol of  the  suit  on  the  bond  against  the 
purchaser,  41. 

If  a  purchaser  has  no  design  to  baffle  the 
court  and  is  unable  to  comply,  he  may 
be  dischar2:ed  on  payment  of  costs. — 
Deaver  v.  Reynolds,  50. 

A  trustee  under  a  decree  may  be  ordered 
to  invest  money,  and  on  failins  to  do  so 
or  to  bring  it  into  court,  may  be  charged 
with  conipound  interest. — Latimer  v. 
Hanson,  53. 

Cases  brought  here  from  a  county  court 
must  be   followed  out  as  if  they  had 


originated  here  without  revising  or  re- 
versing any  previous  order  or  decree. — 
Strike's  case,  67. 

Further  directions  are  those  orders  given 
for  the  purpose  of  fbllow'ing  out  the 
equity  established  in  substance  by  the 
decree,  69. 
In  a  creditors  suit  if  a  claim  be  strongly 
litigated  and  of  difficult  investigation, 
an  issue  may  be  sent  out  to  be  tried  by 
a  jury. — Ringsold  v.  Jones,  89. 

An  order  to  produce  books,  &.c.  can  only 
be  obtained  by  a  party  interested  in 
such  as  he  particularly  specifies,  against 
a  party  to  the  suit,  90. 

A  plaintiff  cannot  be  allowed  to  split  up 
his  claim  and  bring  a  separate  suit  on 
each  part,  or  to  introduce  any  addition 
to  it  after  a  decree  for  a  sale. — Strike's 
case,  95. 

There  is  no  publication  of  depositions — 
all  objections  to  them  are  open,  and 
may  be  taken  at  the  hearing,  96. 

Where  it  is  desired,  that  the  auditor  should 
state  an  account  from  the  proofs  some 
of  which  are  objected  to,  such  objec- 
tion must  be  first  disposed  of,  96. 

Contracts  between  a  solicitor  and  suitor 
for  professional  services  cannot  be  in- 
troduced into  or  blended  with  tlie  cause 
of  suit,  98. 

A  form  of  an  order  Tim  to  have  the  bill 
takenpro  confesso. — Burch  v.  Scott,  114. 

Orders  and  decrees  may  be  altered  or  re- 
scinded during  the  term  ;  after  that  only 
by  original  bill  or  bill  of  review,  120. 

The  filing  of  a  bill  of  review  or  an  origi- 
nal bill  to  set  aside  a  decree  does  not  of 
itself  suspend  its  execution,  125. 

A  bill  of  review  for  newly  discovered  mat- 
ter filed  without  leave  may  be  dismissed 
on  motion. —  Carroll  v.  Pairan,  125. 

A  defendant  may,  on  motion,  obtain  further 
time  to  answer,  125. 

After  the  lapse  of  tlie  time  allowed  by  an 
order  of  publication  against  an  absent 
defendant,  he  must  appear  and  also  an- 
swer, or  the  bill  may  be  taken  pro  con- 
fesso.—  Clapham  v.  Clapham,  126. 

During  the  term  an  interlocutory  decree 
may  be  set  aside  on  appearance  with- 
out answer  under  the  general  powers  of 
the  court. — Hephvmw  MoUison,  127. 

A  decree  by  default  for  more  than  is  dlie 
may  after  the  term,  if  the  plaintiff  has 
lost  no  testimony,  be  set  aside  to  let  in 
a  defence  upon  the  merits. — Burch  v. 
Scott,  129. 

Where  a  suit  has  abated  by  death,  to  be  so 
entered,  and  not  brought  forward  on  the 
docket.— Hall  I'.  Hall,  132. 

A  female  defendant  having  married,  her 
husband  may  be  made  a  party,  and  an 
attachment  issued  against  both  to  en- 
force an  answer. —  Taylorv.  Gordon,  132. 

A  s^ibpcena  ad  respond eiidvm  may  be  serv- 
ed by  the  sheriff  or  by  any  person ; 
but  if  by  any  but  a  legal  officer  the  ser- 


704 


INDEX. 


vice  must  be  proved. — Hoye  v.  Penn 
29 ;  I\ii/lor  v.  Gordon,  132. 

It  is  enough  if  an  affidavit  to  an  answer 
be  as  positive  as  would  sustain  a  prose- 
cution for  perjury. — Coalc  v.  Chase,  137. 

The  origin,  powers  and  duties  of  trus- 
tees appointed  by  the  court  to  sell  pro- 
perty.— Gibson's  case,  139. 

Notice  of  an  order  nisi  for  the  ratification 
of  a  sale  under  a  decree  directed  to  be 
given  by  advertising  in  a  newspaper, 
and  also  by  setting  up  at  the  courthouse 
door. — Ex  parte  Margaret  Black,  142. 

When  a  case  is  set  for  hearing  on  bill  and 
answer,  all  the  facts  stated  in  the  an- 
swer, as  well  those  in  avoidance  as 
those  responsive,  must  be  taken  to  be 
true. — Estep  v.  AVatkins,  48S. 

The  plaintiff  may  set  the  case  down  for 
hearing  on  bill  and  answer,  because  he 
thereby  admits  every  fact  contained  in 
the  answer  to  be  true. — Paul  v.  Nixon, 
201. 

Where  a  matter  can  only  be  brought  be- 
fore the  court  by  petition,  if  the  facts 
therein  set  forth  be  not  denied  on  oath 
they  must  be  taken  to  be  true. — H.  K. 
Chase's  case,  212. 

If  a  defendant  pleads  and  answers  to  the 
same  matter  his  answer  overrules  his 
plea;  and  the  same  principle  holds  in  case 
of  demurring  and  answering,  or  demur- 
ring and  pleading  to  the  same  part,  217. 

An  answer  sworn  to  before  a  justice  of 
the  peace  in  the  District  of  Columbia, 
who  was  certified  to  be  such  at  the  time, 
received. — Lingan  i'.  Henderson,  240. 

A  certificate  of  the  printer  that  an  order 
of  publication  was  published  as  dii-ected 
deemed  sufficient,  240. 

An  order  that  a  commission  issue  unless 
by  a  day  the  opposite  party  name  and 
strike,  240. 

It  must  be  shewn  by  the  bill,  that  the  de- 
fendant is  a  nonresident,  or  that  the 
case  is  such  as  to  authorize  an  order  of 
publication  instead  of  a  subpmna,  245. 

An  order  of  publication,  as  the  substitute 
of  a  subpoena,  is  passed  as  of  course,  and 
is  taken  at  the  peril  of  the  plaintiff,  245. 

An  order  of  publication  must  go  against 
the  wife  as  well  as  the  husband,  or  she 
will  not  be  bound,  246. 

A  defendant  cannot  object  before  the  com- 
missioners that  the  eviilence  is  not  such 
as  is  required  by  the  statuteof  frauds,  24S. 

An  auditor's  report  confirmed  directing  an 
application  of  the  proceeds  with  a  propor- 
tion of  interest. —  Wells  v.  Rolosori,45G. 

Money  brought  in  and  deposited  in  bank 
as  usual  cannot  be  drawn  out  but  by  a 
special  order,  457. 

A  commission  to  audite  accounts  may  go 
to  any  place  most  convenient  to  the 
parties. — Dorspy  v.  Hammond,  4fi5. 

After  a  claim  has  been  submitted  and  re- 
jected, the  order  will  not  be  rescinded 
to  let  in  new  proof  upon  any  ground 


which  would  not  warrnnt  a  bill  of  re- 
view or  a  rehearing,  473. 

Notice  of  the  hearing  of  contested  claims 
in  a  creditors  suit  may  be  given  by  pub- 
lication.—  Spurrier  v.  Spurrier,  476. 

Proof  of  the  publication  of  an  order  for 
creditors  to  come  in,  of  an  order  of 
ratification  nisi,  &.c.  may  be  made  by 
the  printer's  certificate,  or  by  the  pro- 
duction of  the  newspapers,  475. 

Where  the  chancellor  doubts  the  fact  or  the 
testimony  is  obscure,  an  issue  may  be  sent 
out  to  be  tried. — Fornshilly.  Murray, 485. 

The  act  of  1820,  ch.  161,  does  not  apply 
to  abatements  after  a  decree ;  such 
cases  may  be  revived  by  subpcena  scire 
facias. — Allen  v.  Burke,  544. 

After  the  return  of  a  subpcena  scire  facias, 
the  case  may  on  motion  be  ordered  to 
stand  revived,  546. 

The  act  of  1820,  ch.  161,  gave  a  new 
mode  of  proceeding  only  in  those  cases 
where  a  proper  bill  of  reviver  will  lie. — 
Griffith  V.  Bronaugh,  547. 

The  mode  of  taking  the  answer  of  an 
adult  or  infant  defendant. — Snowden  v. 
Snowden,  550. 

The  mode  of  proceeding  by  publication 
against  a  nonresident  infant  defendant. 
Burd  V.  Greenleaf  556. 

The  origin,  nature,  and  extent  of  the  rule 
which  may  be  laid  calling  on  the  plain- 
tiff to  give  security  for  costs. — Mayer 
V.  Tyson,  561. 

The  sufficiency  of  an  injunction  bond 
may  be  objected  to,  and  further  time 
allowed  to  put  in  good  security. — Bil- 
lingslea  i'.  Gilbert,  566. 

The  form  of  a  commission  to  make  parti- 
tion of  lands  under  the  act  to  direct 
descents. — Hughes'  case,  47. 

The  sheriff  to  execute  a  summons  for  wit- 
nesses to  appear  before  commissioners 
to  take  testimony. — Bryson  v.  Petty,  182. 

The  form  of  a  subpcena  scire  facias  to  re- 
vive.— Allen  V.  Burke,  546. 

PPvINCIPAL  AND  INCIDENT. 
A    gift,   assignment,  or  bequest  of  the 
principal,  carries  with  it  all  its  benefi- 
cial incidents. — Iglehart  u.Armiger,  524. 

PRINCIPAL  AND  SURETY. 

Mere  delay  without  fraud  or  collusion  can- 
not affect  the  rights  of  a  creditor  against 
either  principal  or  surety. — Hoye  v. 
Penn,  30. 

Whcrf"  two  or  more  are  equally  or  jointly 
liable  either  as  principals,  or  as  sureties, 
the  property  of  each  may  be  directed  to 
be  sold  in  the  first  instance,  so  as  to  cause 
the  burthen  to  bear  upon  each  in  due 
proportion,  32. 

In  ordinary  money  bonds  there  being  no  dis- 
tinction betwecnprincipal  andsurety,and 
beinsi  alike  bound,  a  case  can  rarely  occur 
in  which  the  ono  who  is  in  fact  surety  may 
be  discharged  because  of  the  laches  of  the 
obligee. — Hoffman  v.  Johnson,  105. 


INDEX. 


705 


A  surety  in  a  common  money  bond  may 
come  into  equity  to  compel  his  princi- 
pal to  pay  or  jelieve  him  from  his  lia- 
bility ;  but  not  in  the  case  of  a  bond  of 
indemnity,  105. 

The  liability  of  one  who  stands  as  surety 
on  negotiable  paper,  is  regulated  by 
peculicir  commercial  law,  105. 

In  case  of  a  bond  for  the  performance  of 
services,  if  there  be  any  undue  laches, 
the  surety  will  be  discharged,  106. 

Where  a  creditor  receives  a  chose  in  ac- 
tion for  the  purpose  of  obtaining  pay- 
ment from  it,  he  is  bound  to  use  due 
diligence  for  that  purpose  ;  and  on  fail- 
ing to  be  ready  to  reassign,  106 ;  Dor- 
sey  V.  Campbell,  357. 

A  trustee  under  a  decree  and  his  surety 
called  on  to  pay  or  shew  cause. — Mul- 
likin  V.  Mullikin,  529. 

A  purchaser  under  a  decree  and  his  surety 
called  on  to  pay  or  shew  cause,  541. 

PRODUCING  BOOKS. 

An  order  to  produce  books,  &c.  can  only 
be  obtained  by  a  party  interested  in 
such  as  he  particularly  describes. — Ring- 
gold V.  Jones,  90. 

The  application  must  be  made  on  oath  ac- 
cording to  the  act  of  1798,  ch.  84,  to  pro- 
duce books,  &c. —  Williams  v.  Hall,  196. 

Although  the  books  be  held  under  the  di- 
rection of  a  trustee  who  objects,  they 
must  be  produced,  196. 

PUBLICATION. 

After  an  order  of  publication  against  an 
absent  defendant,  he  must  appear  and 
cJso  answ-er,  or  the  bill  may  be  taken 
pro  confesso. —  Clapham  v.  Clapham,  126. 

An  order  of  publication  is  the  substitute  for 
a  subpana  ;  hence  it  must  appear  by  the 
bill,  that  the  case  is  such  as  to  authorize 
such  order. — Lingan  v.  Henderson,  245. 

The  wife  as  well  as  the  husband  must  be 
warned  by  such  order  or  she  will  not  be 
bound,  246. 

If  the  case  be  in  fact  such  as  does  not 
allow  of  such  an  order  the  decree  will 
be  void ;  hence  the  party  takes  the  or- 
der as  of  course  at  his  peril,  246  ;  Snow- 
den  V.  Snowden,  558. 

As  to  publication  against  absent  infant 
defendants. — Burd  v.  Greenleaf,  556. 

PUBLIC  RECORDS. 

An  affidavit  to  an  answer  to  a  bill  in  chan- 
cery of  this  State,  or  the  like,  is  an 
authentication  called  for  by  the  jiidicial 
power  here,  and  as  such  is  parcel  of  the 
records  of  this  State,  and  not  within  the 
act  of  congress  providing  for  the  authen- 
tication of  records,  &.c.  of  other  States. 
Gibson  v.  Tilton,  .353. 

Such  authentications  and  the  executions 
of  commissions  to  take  evidence  al- 
lowed and  executed  by  the  comity  of 
all  nations,  and  to  be  encouraged  as 
between  the  States  of  this  Unionj  354. 

89 


Although  a  person  cannot  be  punished 
here  for  a  false  oath  taken  abroad  ;  yet 
if  such  authentication  be  spurious  a  party 
who  introduces  it  may  be  punished  for 
such  an  imposition  upon  the  court,  355. 

RECEIVER. 

The  appointment  of  a  receiver  does  not 
involve  a  decision  upon  any  right — it 
can  only  be  made  at  the  instance  of  a 
party  who  has  an  acknowledged  inter- 
est or  a  strong  presumption  of  title  in 
himself  alone  or  in  common  with  others  ; 
and  where  the  property  itself  or  its  rents 
and  profits  are  in  dangerof  being  materi- 
ally injured  or  totally  Tost. —H.K.Chase's 
case,  213  ;  Williamson  v.  Wilson,  422. 

Where  lands  are  charged  with  the  pay- 
ment of  an  annual  sum,  a  receiver  may 
be  put  upon  it  as  a  means  of  enforcing 
payment. — Rebecca  Owings'  case,  297. 

The  power  to  appoint  a  receiver  is  now 
as  well  established  and  of  as  great 
utility  as  any  which  belongs  to  the 
court. — Williamson  v.  Wilson,  420. 

A  receiver  may  be  clotlied  with  authority 
to  take  and  hold  property,  to  collect 
debts,  &c.  so  as  to  meet  the  exigency 
of  the  case,  421. 

He  is  an  officer  of  the  court — his  ap- 
pointment alters  no  right,  not  even  so 
as  to  prevent  the  running  of  the  statute 
of  limitations,  421. 

The  appointment  of  a  receiver  is  as  little 
open  to  abuse  as  einy  other  judicial  pro- 
ceeding, 422. 

A  receiver  may  be  appointed  before  an- 
swer at  the  instance  of  a  partner  alleging 
that  the  firm  is  insolvent,  and  that  his 
copartners  are  wasting  the  effects,  422. 

The  appointment  does  not  of  itself  divest 
any  one  of  possession ;  the  possessor 
may  shew  cause  against  a  delivery,  424. 

A  proper  person  is  selected  on  the  recom- 
mendation of  the  parties  and  on  con- 
sideration of  all  circumstances,  427. 

A  receiver  may  be  compensated  by  a 
commission,  and  allowed  for  all  expenses 
incurred  in  the  defence  and  preserva- 
tion of  the  property  on  vouchers  being 
produced,  433. 

He  is  bound  so  to  keep  the  property  as 
that  it  may  be  easily  traced,  delivered 
up,  or  accounted  for,  436. 

He  may  be  proceeded  against  in  a  sum- 
mary way,  or  his  bond  sued  on  here  by 
scire  facias,  or  at  law  by  action,  436. 

On  the  death  of  a  receiver  his  personal  re- 
presentatives may  be  proceeded  against 
summarily  to  enforce  payment  or  de- 
livery-, 437. 

On  a  final  and  full  account  a  receiver  or 
his  representatives  may  be  discharged 
and  his  bond  cancelled,  439. 

RELIGION. 
A  devise  to  a  religious   society  without 
the  leave  of  the  legislature  is  void. — 
Murphy  v.  Dallam,  529. 


706 


INDEX. 


REMOVED  CASES. 
Cases  brought  here  from  a  county  court 
must  be  followed  out  as  if  they  had  origi- 
nated here,  without  revising  or  reversing 
any  previous  order  or  decree,  except  in 
the  regular  way. — Strike's  case,  67. 

RENTS  AND  PROFITS. 

An  occupying  tenant  is  liable  for  rents 
and  profits  whether  he  knows  of  the 
adverse  title  or  not.— Strike's  case,  71. 

May  be  recovered  in  equity  where  there  is 
any  difficulty  at  law,  or  where  the  title  is 
merely  equitable  ;  after  the  title  has  been 
established  by  the  decree,  rents  and 
profits  may  be  a  subject  of  further  direc- 
tions, 72. 

The  account  in  some  cases  is  carried  back 
only  to  the  filing  of  the  bill,  in  others  to 
the  commencement  of  the  title,  73. 

A  mortgagee  or  rightful  holder  is  chargeable 
only  with  actual  receipts ;  but  a  wrongful 
holder  is  accountable  for  the  full  value 
or  what  might  have  been  made,  73. 

A  claim  by  a  bona  fide  possessor  for  im- 
provements may  be  discounted  from  that 
made  against  him  for  rents  and  profits  or 
for  waste,  79 ;  Rawlings  v.  Carroll,  76. 

RESURVEY. 
The  right  to  take  in  contiguous  vacancy, 
by  a  warrant  of  resurvey  from  the  land 
office,  is  incident  to  the  legal  title  only. 
Hoffman  v.  Johnson,  110. 

REVIEW. 

There  can  be  no  bill  here  in  the  nature  of 
a  bill  of  review  as  understood  in  Eng- 
land.—Burch  V.  Scott,  122. 

A  bill  of  review,  its  nature,  either  for  error 
apparent  or  newly  discovered  matter,  122 . 

The  filing  of  a  bill  of  review  or  of  an 
original  bill  to  set  aside  a  decree  does 
not  of  itself  suspend  the  execution  of  a 
decree,  12.5. 

A  bill  of  review  for  newly  discovered  mat- 
ter filed  without  leave  may  be  dismissed 
on  motion. —  Carroll  v.  Parr  an,  125. 

The  allegation  of  the  fact,  that  the  matter 
is  newly  discovered  on  which  an  appli- 
cation is  made  to  file  a  bill  of  review 
should  be  then  controverted  and  finally 
determined  so  as  not  to  be  drawn  in 
question  after  the  bill  has  been  filed. — 
Hodges  V.  MuUikin,  506. 

If  the  discovery  of  the  new  matter  was 
made  so  long  before  the  decree  as  to 
have  admitted  of  an  application  to  have 
it  brought  in,  a  bill  of  review  will  not 
be  allowed,  511. 

The  party  must  have  used  reasonably 
active  cliligence  in  searching  for  and 
bringing  in  his  proofs,  or  a  bill  of  re- 
view will  not  be  allowed,  511. 

Although  a  bill  of  review  may  be  refused 
to  a  party  because  of  his  own  demerits, 
yet  it  may  be  granted  with  a  view  to  the 
protection  of  the  interests  of  others,  513. 


REVIVOR. 

Rules  to  be  observed  on  the  application 
of  the  representative  of  the  deceased 
party  to  be  let  in  under  the  act  of  1820, 
ch.  161,  to  revive  on  an  abatement  by 
death. — Labes  v.  Monker,  130. 

The  mode  of  reviving  given  by  the  act 
of  1820,  ch.  161,  applies  only  to  cases 
of  abatement  by  death,  not  to  abatement 
by  the  marriage  of  a  female  plaintifi'. — 
Hall  V.  Hall,  132. 

That  new  mode  is  confined  to  cases  where 
a  proper  bill  of  revivor  will  lie  except 
as  to  a  devisee,  132. 

The  act  of  1820,  ch.  161,  does  not  apply 
where  a  subpcena  scire  facias  is  the  pro- 
per mo^de,  133  ;  Allen  v.  Burke,  545. 

Where  a  suit  has  abated  by  death,  to  be  so 
entered  and  not  brought  forward  on  the 
docket,  132  note. 

If  the  suit  abates  after  a  decree  affecting 
both  real  and  personal  property,  it  may 
be  revived  by  the  heirs  or  personal  re- 
presentatives or  by  either. — Colegate  D. 
Owings'  case,  409. 

There  may  be  a  revival  for  costs,  409. 

After  a  decree  to  account  either  party  may 
revive. — Griffith  v.  Bronaugh,  548. 

ROADS. 
A  mill  race  not  a  building  within  the  mean- 
ing of  an  act  of  Assembly  for  opening-a 
new  road. —  Worthingtonv.  Bicknell,187 . 

SALES  UNDER  A  DECREE. 

Where  it  appears  that  the  person  reported 
as  the  purchaser  had  no  design  to  baffle 
the  court,  he  may  be  discharged  on  pay- 
ment of  costs. — Deaver  v.  Reynolds,  50. 

Where  the  property  of  a  debtor  has  been 
sold  for  an  amount  equal  to  the  whole 
claim  the  debtor  is  discharged,  notwith- 
standing any  subsequent  depreciation 
or  failure  in  collecting  the  proceeds  of 
sale. — Hoye  v.  Penn,  64. 

The  trustee  may  be  directed  to  convey  to 
the  assignee  of  the  purchaser  on  the 
payment  of  the  purchase  money,  36,39. 

Under  a  decree  for  a  sale,  in  a  creditors 
suit,  the  then  growing  crop  should  not 
be  sold. —  Taylor  v.  Colegate,  365. 

On  a  sale  under  a  decree  the  court  is  the 
vendor,  and  as  such  the  holder  of  the 
equitable  lien.— Iglehart  ?;.Armiger,  527. 

If  the  purchase  money  be  not  paid  the 
court  upon  its  equitable  lien  may  order 
a  resale  at  the  risk  of  the  purchaser. — 
MuUikin  v.  Mullikin,  541. 

SOLICITORS. 

Money  may  be  paid  out  of  court  to  a  so- 
licitor of  the  party  entitled  to  it. — 
Hoye  IK  Penn,  40  note. 

A  commission  allowed  to  solicitors  accord- 
ing to  an  admitted  special  agreement. — 
Strike's  case,  63,  95. 

A  contract  between  a  solicitor  and  suitor 
for  professional  services  cannot  be  in- 


INDEX. 


707 


troduced  into  and  blended  with  a  pend- 
ing suit,  98. 

A  solicitor  cannot  be  permitted  at  any 
time  to  divulge  the  secrets  of  his  cli- 
ent without  his  consent. — Hannah  K. 
Chase's  case,  222. 

A  solicitor  may  refuse  to  act  further  for 
his  client,  but  he  cannot  go  over  to  the 
opposite  part}',  222. 

SPECIFIC  PERFORMANCE. 

On  a  bill  to  obtain  a  legal  title  according 
to  a  bond  of  conveyance,  the  defendant 
may  be  ordered  to  produce  an  act  of 
Assembly  to  confirm  the  conveyance. — 
Raniin9:s  v.  Carroll,  75. 

Verbal  proof  in  any  respect  essentially 
different  from  the  vsTitten  contract,  or 
of  the  written  part  of  it  cannot  be  re- 
ceived.— Ogden  V.  Ogden,  287. 

If  it  be  doubtful  whether  a  letter,  con- 
cerning a  contemplated  marriage,  was 
intended  as  an  agreement  to  pay  a  por- 
tion or  not,  the  court  will  not  decree  a 
performance,  288. 

Where  the  plaintiff  by  his  bill  offers  to  per- 
form his  part,  and  the  answer  admits  or 
sets  out  the  agreement  which  is  proved, 
there  may  be  a  decree  against  each  with- 
out a  cross  bill. — Dorsey  v.  Campbell, 
359 ;  Watkins  v.  Watkins,  359 ;  Long  v. 
Gorsuch,  361 ;  Etchison  v.  Dorsey,  536. 

STATUTE  OF  LIMITATIONS. 

After  the  claim  of  a  creditor  has  been 
contested  upon  its  merits,  the  heir  can- 
not be  allowed  to  rely  upon  the  statute 
of  limitations. — McMechen  v.  Chase,  85. 

In  a  creditors  suit  if  the  statute  of  limi- 
tations be  not  specially  objected  to  a 
claim,  it  cannot  be  taken  advantage 
of. — Strike's  case,  91. 
Tn  a  creditors  suit  the  statute  of  limitations 
maybe  relied  on  in  bar  of  a  claim  brought 
in  under  the  decree,  by  any  one  of  the 
original  parties  or  by  a  co-creditor,  93. 

The  policy  of  the  statute  is,  that  there 
should  be  an  end  to  litigation — it  goes  to 
shew,  either  that  the  claim  never  existed, 
or  that  it  has  been  satisfied. — Lingan  r. 
Henderson,  272 ;  Moreton  v.  Harrison, 
501. 

The  statute  applies  onlyby  analog}^  in  equi- 
ty :  if  the  party  would  have  been  barred 
at  law  he  shall  be  barred  in  equitj-,  273. 

There  are  various  circumstances  which 
will  take  a  case  out  of  the  statute  or 
prevent  its  operation,  273. 

A  promise  or  acknowledgment  takes  a 
case  out  of  the  statute  because  of  its 
being  a  renewmcnt  of  the  contract ; 
and  therefore  where  there  is  a  plurality 
of  defendants,  it  must  come  from  all  or 
from  a  then  partner  or  person  compe- 
tent to  contract  for  all,  277. 

The  statute  of  limitations  may  be  availa- 
ble against  only  a  part  of  the  cause  of 
suit,  278. 


Such  a  plea  cannot  be  received  to  enure 
only  to  the  benefit  of  him  who  pleads 
it  against  a  bond,  note,  or  the  like,  278. 

Where  the  purchase  money  has  been  se- 
cured by  an  equitable  lien,  a  bond,  and 
a  note  ;  twenty  years  only  is  a  bar  to 
the  lien,  twelve  years  of  the  bond,  and 
three  years  of  the  note  ;  but  if  the  bond 
or  note  be  so  barred  on  suit,  that  can- 
not affect  the  lien  in  equity,  280,  500. 

A  partial  payment  takes  the  case  out  of 
the  statute  of  limitations. — Moreton  v. 
Harrison,  493. 

On  a  plea  of  the  statute,  if  the  bill 
alleges  any  fact  which  would  take  the 
case  out  of  the  statute,  such  fact  must 
be  denied  by  an  answer  in  support  of 
the  plea. — Lingan  v.  Henderson,  282 ; 
Moreton  v.  Harrison,  493. 

A  plaintiff  may  take  advantage  of  the 
statute  for  the  protection  of  his  inter- 
ests.— Watkins  u.  Dorsett,  532. 

There  is  no  saving  in  the  act  limiting  ap- 
peals in  favour  of  persons  non  compos 
mentis. — Colegate  D.  Owings'  case,  408. 

TRUSTEE  UNDER  A  DECREE. 

A  trustee  who  has  obtained  judgment 
against  a  purchaser  upon  his  bond  may 
have  the  same  land  sold  under  a  fieri 
facias  upon  such  terms  as  he  may  deem 
best  on  consulting  with  the  parties  con- 
cerned.— Hoye  V.  Penn,  41. 

A  trustee  may  be  required  to  invest  mo- 
ney in  his  hands,  and  on  his  failing  to 
do  so  or  to  bring  it  into  court,  may  be 
charged  with  compound  interest. — Lati- 
mer i;.  Hanson,  53. 

He  is  not  bound  to  accept  or  to  continue 
in  the  office ;  but  if  he  does  do  so,  he 
must  obey  the  orders  of  the  court,  56. 

This  court  has  the  power,  independently 
of  any  act  of  assembly,  to  employ  a 
trustee  to  execute  its  orders  or  decrees 
by  a  sale  or  otherwise. — Gibson's  case, 
139  ;  Pue  V.  Dorsey,  139. 

A  trustee  is  regarded  as  the  legal  ministe- 
rial officer  of  the  court,  139. 

A  feme  sole  may  be  employed  as  a  tnis- 
tee,  141  ;  Ex  parte  Margaret  Slack,  142. 

In  a  creditors  suit  the  widow  may  be  ap- 
pointed trustee,  so  that  the  commis- 
sions may  be  saved  to  her  and  her  chil- 
dren.— Gibson's  case,  141. 

The  register  of  this  court,  the  clerk  of  a 
court,  an  infant,  a  feme  covert,  a  non- 
resident, or  an  officer  of  the  army  or 
navy  cannot  bo  appointed  trustee,  143. 

A  trustee  being  appointed  during  plea- 
sure may  at  any  time  be  removed  for 
cause,  143  ;  Mackubin  r.  Brown,  412 ; 
IMullikin  r.  Mullikin,  539. 

In  the  selection  of  a  trustee  recommenda- 
tions are  heard,  and  all  circumstances 
considered. — Gibson's  case,  143. 

Where  the  decree  directs  the  property  to 
be  advertised  for  sale,  the  trustee  must 
so  put  it  into  tlie  market ;  but  after  that 


708 


INDEX. 


he  may  sell  as  he  can,  144;  Mackubin 
V.  Brown,  415. 
He  cannot  give  notice  to  creditors  with- 
out an  order  from  the  court. — Gibson's 
case,  144. 
Commissions  to  trustees  are  regulated  by 
act  of  Assembly  and  by  rule  of  court, 
145—147. 
A  trustee  may  employ  an  auctioneer  to 
whom  a  fee  of  live  dollars  may  be  al- 
lowed for  each  separate  sale,  147. 
The   commissions  of  a   trustee   may  be 
increased,  diminished,  apportioned,  or 
withheld   accordinsj  to   circumstances, 
147  ;   Millar  v.  Baker,  149. 
If  a  trustee  fails  to  bring  in  or  account  for 
the  money,  bond,  or  notes,  he  may  be 
charged  with  the  whole  amount  of  the 
sales.— Mackubin  v.  Brown,  416. 
Bonds  and  notes  may  be  assigned  to  the 
parties  in  satisfaction  of  their  claims, 
but  it  is  most  usual  to  suffer  the  trustee 
to  hold  them  for  collection,  416. 
By  holding  the  trustee  liable  the  court 
neither  pai-ts  with  any  lien,  nor  exone- 
rates any  one  else,  417. 
A  delinquent  trustee  cannot  be  let  in  to 
have  the  benefit  oi'  a  discount  as  against 
any  claimant  in  the  case,  417. 
Where  a  report  of  the  auditor  has  been 
affirmed,  and  the  trustee  directed  to  dis- 
tribute the    proceeds    accordingly,   he 
must  distribute  the  amount  in  hand  ac- 
cording to  that  proportion,  and  the  resi- 
due  in   the    same    way  as   received. — 
Iglehartw.  Armiger,  521. 
A  trustee  and  his  surety  maybe  called  on 
to  bring  the  money  into  court  or  shew 
cause.— Mullikin  v.  Mullikin,  539. 

VENDOR  AND  VENDEE. 

Land  sold  in  a  body,  by  a  designated 
name,  or  by  the  acre,  there  can  be  no 
claim  for  deficiency. — Hoffman  v.  John- 
son, 109  ;  Murdoch  v.  Beal,  109. 

But  it  is  otherwise  if  it  be  sold  by  the 
tract  containing  so  many  acres  more  or 
less,  109. 

To  every  grant  of  land  from  the  State  there 
is  an  implied  warrant\-  to  make  up  the 
specified  quantity  to  the  holder,  110. 

A  holder  of  the  ZegaZ  title  may  by  a  war- 
rant of  resurvey  take  in  any  contigu- 
ous vacancy,  110. 

A  vendee  has  a  right  to,  and  is  bound  to  take 
all  incidents  to  the  land  he  purchases, 
and  therefore  must  take  land  which  the 
vendor  has  included  by  a  warrant  of  re- 
survey. — floffman  ?\  .Johnson,  110. 

Land  devised  to  bo  sold  was  sold  by  the 
executor  imder  an  apprehension,  that  ho 
was  authorized  to  do  so,  tlie  sale  was  af- 
firmed.— Ex  pnrfp  Marg:arrt.  Black,  142. 

After  a  bill  filed,  if  the  purchaser,  being 
in  possession,  exercises  acts  of  owner- 


ship, he  may  be  compelled  to  bring  the 
purchase  money  into  court. — McKimt>. 
Thompson,  161. 

A  purchaser  has  a  right  to  demand  a 
sound  legal  title,  unless  it  has  been  oth- 
erwise distinctly  understood  at  the  time 
of  the  purchase. — Stewart  v.  Barry,  192. 

To  ascertain  the  true  nature  and  meaning 
of  a  contract  the  court  may  look  into 
all  the  contemporaneous  dealings  and 
agreements  between  the  parties. — Han- 
nah K.  Chase's  case,  225. 

The  forms  by  which  a  feme  covert  of  full 
age  may  legally  convey  her  right  to  real 
estate  or  bar  her  right  to  dower,  228. 

The  origin  and  objects  of  recording  con- 
veyances for  land,  2.30,  note. 

The  usual  receipt  for  the  purchase  money 
on  a  deed  for  land  is  evidence  of  the  low- 
est order. — Lingan  v.  Henderson,  249. 

WASTE. 

A  mortgagee  in  possession  may  be  charged 
with,  and  made  to  account  for  waste. — 
Rawlings  v.  Stewart,  22. 

On  a  bill  for  specific  performance  the  de- 
fendant being  unable  to  make  a  vedid  title 
was  perpetually  injoined  from  recovering 
the  purchase  money,  and  the  plaintiff  or- 
dered to  account  for  waste  beyond  what 
might  have  been  proper  in  the  use  of  the 
land. — Raivlings  v.  Carroll,  76. 

The  difference  between  waste  and  tres- 
pass.— Duvall  V.  Waters,  571. 

An  injunction  may  be  granted  here  to  stay 
waste  in  any  case  in  which  it  would  be 
allowed  by  the  English  law,  576. 

The  nature  and  office  of  a  writ  of  estrepe- 
ment,  57.3. 

The  writ  of  prohibition  to  stay  waste,  572. 

Where  waste  has  actually  been  committed 
the  plaintiff  under  an  injunction  bill 
maj'  have  an  account  of  waste,  577. 

There  is  no  common  law  mode  of  pre- 
venting a  threatened  trespass,  573. 

WITNESSES. 

A  summons  for  witnesses  to  depose  before 
commissioners  to  take  evidence  must  be 
served  by  the  sheriff  if  required,  upon 
which  their  attendance  may  be  enforced 
by  attachment. — Brijson  v.  Petty,  182. 

The  policy  of  the  law  does  not  permit  a 
solicitor  to  divulge  the  secrets  of  his 
client  without  his  consent. — Hannah  K. 
Chase's  case,  222 ;  Hodges  v.  Mullikin 
509. 

A  commission  maybe  granted  to  take  the 
deposition  dc  bene  esse  of  an  aged  and 
infirm  witness. — Lingan  i\  Henderson, 
2.38  ;  Rymer  v.  Dvlany,  238. 

A  witness  may  be  compelled  to  attend  and 
give  evidence  under  a  commission  sent 
here  from  another  State. — Gibson  v. 
Tilton,  354. 


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Constitutional  Reports  of  S.  C.  2  vols. 

Constitution  of  U.  S.  and  of  the  different  States, 

Cooper's  Chancery  Cases, 

Cooper's  Equity  Pleading, 

Cooper's  Justinian's  Institute, 

Cootes  on  Mortgages, 

Coventry  and  Hughe's  Digest  of  all  the  Com.  Law 
Reports  up  to  1760,  2  vols. 

Cowen's  Reports,  9  vols.  N.  Y. — Continuation  of 
Johnson's  Reports. 

Cowen's  Digest  of  N.  Y.  Reports, 

Cox's  Digest  of  U.  S.  Reports, 

Crabbe's  History  of  the  English  Law, 

Cranch's  Reports,  9  vols.   U.  S. 

Croke's  Reports,  3  vols. 

Crown  Circuit  Companion, 

Cruise  on  Fines  and  Recoveries, 

Cruise's  Digest  of  Real  Properly,  7  vols,  in  4, 

Dallas's  Reports,  4  vols.  U.  S. 

Davis'  Justice, 

Davis'  Precedents, 

De  Lolme  on  British  Constitution, 

Desaussure's  Equity  Rep.  4  vols.  S.  C. 

Dictionary  of  Quotations, 

Duponceau  on  .lurisdiction, 

Durnford  and  East's  Reports,  8  vols,  in  4, 

Dyer's  Reports,  3  vols. 

East's  Reports,  16  vols. 

Eden  on  Injunctions, 

Edwards'  Ad.  Reports, 

Eloquence  of  British  Senate,  2  vols. 

Emerigon  on  Bottomry  and  Respondentia, 

Espinasse  on  Penal  Actions, 

Espinasse's  Evidence, 

Evans'  Pleading, 

Federalist, 

Fell  on  Guarantees, 

Feme  on  Remainders, 

Field's  Blackstone, 

Finche's  Reports, 

Fonblanque  on  Equity, 

Foster's  Crown  Law, 

Gallison's  Reports,  2  vols.  U.  S. 

Gilbert  on  Evidence,  3  vols. 

Gilbert  on  Replevin, 

Gilhfirt'a  Common  Pleas. 


Gilbert's  Devises, 

Gilmer's  Virginia  Reports, 

Gordon's  Digest,  U.  S.  Laws, 

Gow  on  Partnership, 

Graham's  Practice,  N.  Y. 

Hale's  Common  Law, 

Hale's  Pieas  of  the  Crown,  2  vols. 

Harper's  Equity  Reports,  vol.  1.  S.  C 

Harper's  Law  Reports,  vol.  1.  S.C. 

Harris  and  McHenry's  Rep.  4  vols.  J\Id. 

Harris  and  Johnson's  Reports,  6  vols.  JVfd. 

Harris  and  Gill's  do.     2  vols.  J\'Id. 

Harris'  Entries,  by  Evans,  2  vols. 

Harrison's  Digest  Com.  Law  Rep.  1756  to  1831, 

Hawkins'  Pleas  of  the  Crown,  2  vols. 

Heath's  Ma.xims, 

Henning  and  Munford's  Reports,  4  vols.  Vd. 

Highmore  on  Lunacy, 

Hovenden's  Supplem.  to  Yesey,  jr.  2  vols. 

Hobart's  Reports, 

Hoffman's  Course  of  Legal  Study, 

Hoffman's  Legal  Outlines, 

Holt's  Law  of  Libel, 

Hopkins'  Chancery  Reports, 

Ingersoll's  Digest  of  U.  S.  Laws, 

Ingraham  on  Insolvency, 

Irish  Term  Reports, 

Jacob  and  Walker's  Chancery  Rep.  2  vols. 

Jacobs'  Law  Dictionary,  6  vols. 

Jacobson's  Sea  Laws, 

Jeremy's  Equity  Jurisdiction, 

Johnson's  Cases,  3  vols.  JV'.  Y. 

Johnson's  Chanc.  Reports,  7  vols.  J^l   Y. 

Johnson's  Digest,  2  vols. 

Johnson's  Reports,  20  vols.  JV*.  Y.     The  first  11 

volumes  a  new  and  improved  edition, 
Jones  on  Bailments, 
Kent's  Commentaries,  4  vols. 
Kyd  on  Awards, 
Law  of  Lien, 
Law  of  War, 

Laws  ofMaryland,  (Kilty,)  2  vols. 
Do-  do.         (Flarris  and  Watkins,)  5  vols. 

Long  on  Sales, 

McCord's  Com.  Law  Rep.  4  vols.  S.  C. 
McCord's  Chancery  Reports,  2  vols.  S.  C. 
Maddock's  Chancery  Practice,  2  vols. 
Haddock's  Chancery  Reports,  6  vols,  in  3, 
Mallory's  Entries,  2  vols. 
Maltby  on  Courts  Martial, 
Manning's  Digest  of  N.  P.  Reports, 
Marshall  on  Insurance,  2  vols.  New  ed.  by  Condy. 
Mason's  Reports,  4  vols.   U.  S. 
Massachusetts  Reports,  17  vols. 
Mathews'  Presumptive  Evidence, 
Maule  and  Sclwyn's  Reports,  5  vols. 
Maxims  in  Equity, 
Ma.xwell's  Law  Dictionary, 
Metcalf 's  Digest  of  Massachus.  Reports, 
Merrivale's  Chancery  Reports,  3  vols. 
Miller's  View  of  the'English  Government, 
Milford's  Pleading, 
Montagu  on  Lien, 
Montagu  on  Set-Off, 
Montagu  on  Partnership,  2  vols. 
Montcliori's  Notarial  Precedents, 
Montesquieu's  Spirit  of  Laws,  2  vols. 
Munford's  Virginia  Reports,  6  vols 
Newland  on  Contracts, 
Newland's  Chancery,  2  vols. 
New  York  Cases  in  Error,  2  vols. 
Noys'  Maxims, 

Oliver's  Practical  Conveyancing, 
Paige's  Chancery  Reports,  2  vols.  JV!  F. 
Fame  and  Duer's  Practice,  2  vols. 
Paine's  Circuit  Ct.  Reports,   U.  S. 
Paley  on  Agency, 


Peters'  Admiralty  Reports,  2  vols. 
Peters'  Condensed  Reports,  3  vols.  Sap.  C 
Peters'  Circuit  Court  Reports,  U.  S. 
Peters'  Reports,   U.  S.  4  vols. 
Petersdorff's  Abridgment,  15  vols 
Phillips'  Insurance, 
Phillimore's  Reports,  2  vols. 
Pickering's  Reports,  S  vols.     JMasstS. 

Pierre  Williams'  Reports,  3  vols. 

Pothier  on  Obligations,  2  vols,  by  Evans, 

Powell  on  Contracts, 

Powell  on  Devises, 

Powell  on  Mortgages,  3  vols.— new  ed. 

Preston  on  Estates,  2  vols,  in  1, 

Puffendo.tl    Best  ed.  with  Bynckershoeck's  Notes, 

Randolph's  Reports,  6  vols.   Vir. 

Rawle  on  the  Constitution, 

Reeve's  Domestic  Relations, 

Reeve's  English  Law,  4  vols. 

Reeve's  Law  of  Descents, 

Registrum  Brevium, 

Roberts  on  Frauds, 

Roberts  on  Fraudulent  Conveyancing, 

Roberts'  Wills,  2  vols. 

Roper  on  Legacies,  2  vols. 

Roper's  Husband  and  Wife,  2  vols. 

Roscoe  on  Evidence, 

Russell  on  Crimes,  2  vols.  f, 

Russell's  Chancery  Reports,  vol.  1st.  >' 

Rulherforth's  Institutes,  new  ed. 

Salkeld's  Reports,  3  vols. 

Saunders'  Pleading  and  Evidence,  2  vols. 

Saunders'  Reports,  by  Williams,  3  vols. 

Saunders'  Uses  and  Trusts, 

Schoales  and  Lefroy's  Reports,  2  vols. 

Sellon's  Practice,  2'vols. 

Selwyn's  Nisi  Prius,  2  vols.— new  ed. 

Sergeant  &,  Lowber's  Com.  Law  Reports,  17  vol*' , 

Sergeant  and  Rawle's  Reports,  17  vols.  Penn. 

Sergeant's  Constitutional  Law, 

Shower's  Reports,  2  vols. 

Spellman's  Glossary, 

Starkie  on  Slander, 

Starkie's  Criminal  Pleading, 

Starkie's  Evidence,  3  vols. 

Starkie's  N.  P.  Reports,  2  vols. 

Story's  Pleadings,  new  ed.  by  Oliver, 

Story's  Laws  of  United  States,  3  vols. 

Stephen's  Pleading, 

Sugden's  Letters, 

Sugden  on  Vendors, 

Sullivan's  Lectures,  2  vols. 

Talbot's  Cases, 

Taunton's  Reports,  8  vols. 

Tidd's  Practice,  2  vols. 

Toller  on  Executors, 

Tothill's  Chancery, 

Tucker's  Blackstone,  5  vols. 

Tyler's  Vermont  Reports,  2  vols. 

Vattcll's  Law  of  Nations, 

Vernon's  Reports,  2  vols,  by  Raithby, 

Vesey  Junr.'s  Reports,  20  vols. 

Vesey  and  Beanie's  Reports,  3  vols,  in  2. 

Vesey  Senr.'s  Reports,  and  Suppt.,  3  vols. 

Vesey  Junr.'s  Suppt.  bv  Hovenden,  2  vols. 

Washington's  Circuit  Court  Reports,  4  vols.  U.S. 

Washington's  Reports,  2  vols.   Vir. 

Wentworth  on  Executors,  new  ed. 

Wendell's  Reports,  4  vols.  N.  Y.  continuation  of 

Johnson  and  Cowen, 
Wheaton's  Reports,  U.  S.  12  vols. 
Whcaton's  Digest  of  U.  S.  Reports, 
Wheaton's  Digest  of  U.  S.  Reports,  Supt. 
Whcaton  on  Captures, 
Wharton's  Digest  of  Penn.  Reps,  new  ed. 
Woodfall's  Landlord  and  Tenant, 
Wood's  Institutes, 


irSi?J'ii:^%^Z^^^^^^  L"  .^"  "-  departments  of  Literature 


-*  ♦ 


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